Bracks v Smyth-Kirk

CATCHWORDS: TORTS - joint tortfeasors - successive defamation proceedings by plaintiff against different defendants - first proceedings settled in plaintiff's favour and judgment satisfied - second proceedings dismissed as abuse of process - whether claim in second proceedings brought in respect of "damage" claimed in first proceedings - Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(b) - STATUTORY INTERPRETATION - acts of parliament - interpretation - meaning of "damage" - Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(b) - STATUTORY INTERPRETATION - regulations - whether second proceedings abuse of process where defendant in second proceedings does not assert plaintiff fully recouped loss through settlement of first proceedings - Uniform Civil Procedure Rules 2005 (NSW), 13.4(1) - APPEAL - appeal - points and objections not taken below - trial conducted on common ground that second proceedings were an abuse of process if s 5(1)(b) applied - whether appellant should be permitted to repudiate that position on appeal - APPEAL - appeal - right of appeal - whether dismissal of proceedings as abuse of process final or interlocutory judgment - whether appeal involved matter amounting to $100,000 or more - Supreme Court Act 1970 (NSW), s 101(2)(r) - WORDS AND PHRASES - "damage"

Defamation Act 2005 (NSW) Law Reform (Joinder of Actions) Amendment Act 1978 (NSW) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Supreme Court Act 1970 (NSW) Wrongs Act 1958 (Vic) LEGISLATION CITED: Federal Court of Australia Act 1976 (Cth) Judicature Act 1873 (UK) Taxation Administration Act 1953 (Cth) Defamation Act 1992 (NZ) Law Reform (Married Women and Tortfeasors) Act 1935 (UK) Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)

Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; 216 CLR 109 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Applicant S 1000 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 285 Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256 Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635 Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 Bracks v Smyth-Kirk [2008] NSWSC 930 Brinsmead v Harrison (1972) LR 7 CP 547 Bryanston Finance Ltd v de Vries [1975] QB 703 C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board; C.A.L. No 14 Pty Ltd v Scott [2009] HCA 47 Carr v Finance Corporation of Australia Limited [No 1] [1981] HCA 20; (1981) 147 CLR 246 Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 Chadwick v Bridge [1951] HCA 11; (1951) 83 CLR 314 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Cutler v McPhail [1962] 2 QB 292 Dow Jones v Gutnik [2002] HCA 56; (2002) 210 CLR 575 Egglishaw v Australian Crime Commission [2007] FCAFC 183; (2007) 164 FCR 224 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 Hanrahan v Ainsworth (1985) 1 NSWLR 370 Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69 James Hardie and Co v Seltsam Pty Ltd [1998] HCA 78; (1998) 196 CLR 53 Jameson v Central Electricity Generating Board [2000] 1 AC 455 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60; (2008) 167 FCR 372 John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 John Fairfax Publications Pty Limited v Obeid [2005] NSWCA 60; (2005) 64 NSWLR 485 Kassem v Colonial Mutual General Insurance Co Ltd [2001] NSWCA 38 Kelly v Narrandera Shire Council [1998] NSWCA 121 Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 259 ALR 319 Lange v Atkinson [1997] 2 NZLR 22 Licul v Corney [1976] HCA 6; (1976) 180 CLR 213 Luck v University of Southern Queensland [2009] FCAFC 73; (2009) 176 FCR 268 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 CASES CITED: Maple v David Syme [1975] 1 NSWLR 97 Maricic v Dalma Formwork (Australia) Pty Ltd & Anor [2006] NSWCA 174 McManus v Beckham [2002] 4 All ER 497; [2002] 1 WLR 2982 Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631 Multiplex Constructions Pty Ltd v Irving; Fugen Holdings Pty Ltd v Irving [2004] NSWCA 346 MZWHW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 466 NADZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 975 News Ltd v Aust Rugby Football League Ltd (1996) 64 FCR 410 Noel Francis Bracks v John Denoon (Supreme Court of New South Wales, Nicholas J, 14 December 2006, unreported) Payne v Young [1980] HCA 54; (1980) 145 CLR 609 Platypus Leasing Inc v Commissioner of Taxation [2005] NSWCA 399 PNJ v R [2009] HCA 6; (2009) 83 ALJR 384 Port of Melbourne Authority v Anshun Pty Ltd (No 1) [1980] HCA 41; 147 CLR 35 Pye v Renshaw [1951] HCA 8; (1951) 84 CLR 58 R v Carroll [2002] HCA 55; (2002) 213 CLR 635 Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271 Re Luck [2003] HCA 70; (2003) 78 ALJR 177 Richardson v Trautwein [1942] HCA 5; (1942) 65 CLR 585 Royal Brompton Hospital NHS Trust v Hammond [2002] UKHL 14; [2002] 1 WLR 1397; [2002] 2 All ER 801 Sims v Wran [1984] 1 NSWLR 317 Slipper v British Broadcasting Corporation [1991] 1 QB 283 Smith v Foley [1912] VLR 314 Speight v Gosnay (1891) 60 LJQB 231 Speirs v Caledonian Collieries Ltd (1956) 57 SR (NSW) 483 Spicer v Carmody (1948) 48 SR (NSW) 348 State of South Australia v Mountford [2001] SASC 85; (2001) 79 SASR 389 Stroud v Lawson [1898] 2 QB 44 SZDEG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 748 SZEEO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546 Tampion v Anderson (1973) 48 ALJR 11 Tang Man Sit v Capacious Investments Ltd [1996] AC 514 The Koursk [1924] P 140 Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574 Timberland Property Holdings Pty Ltd v Julie Bundy [2005] NSWCA 419 Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 Wah Tat Bank Ltd v Chan [1975] AC 507 Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448

Clerk and Lindsell on Torts, 14th ed (1975) Sweet & Maxwell Patrick George, Defamation Law in Australia (Butterworths, 2006) TEXTS CITED: W Blake Odgers, Libel and Slander, (5th ed) Stevens & Sons Limited Glanville L Williams, Joint Torts and Contributory Negligence, (1951) Stevens & Sons Limited P W Young QC, Declaratory Orders, 2nd ed (1984) Butterworths Third Interim Report, (1934) (Cmd 4637) of the Law Revision Committee (Great Britain)

PARTIES: Noel Francis Bracks - Appellant Ross Smyth-Kirk - Respondent

COUNSEL: T S Hale SC with J O Hmelnitsky - Appellant A Leopold SC with M R Richardson - Respondent

SOLICITORS: Noel F Bracks & Company - Appellant Esplins - Respondent

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20130 of 2007

LOWER COURT DATE OF DECISION: 9 September 2008

LOWER COURT MEDIUM NEUTRAL CITATION: [2008] NSWSC 930

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40421 of 2008 SC 20130 of 2007

ALLSOP P McCOLL JA YOUNG JA

Monday 7 December 2009 Noel Francis Bracks v Ross Smyth-Kirk Judgment

1 ALLSOP P: I have read the reasons of McColl JA. I agree with the orders proposed by her Honour. Subject to the following, I agree with her Honour's reasons. 2 I do not agree that the orders of the primary judge were final. The terms of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(b) make clear that the consequence of more than one action being brought in respect of "that damage" is not that the second action is barred by some form of statutory estoppel or res judicata, but rather the sum recoverable is affected, as is the question of costs: see also Baxter v Obacelo Pty Limited [2001] HCA 66; 205 CLR 635 at 651 [29]. 3 Here, the primary judge's conclusions as to the operation of the section in the context of the full satisfaction of the first judgment were as set out in [17] of her Honour's reasons: "to preclude any recovery by Mr Bracks in these proceedings". In the absence of any justification of the proceedings other than for the recovery of damages, the primary judge concluded that the proceedings were an abuse. The primary judge was well aware of the terms of s 5(1)(b) and of the effect of Baxter. Her Honour's reference in [54] of her reasons to the judgment of Begg J in Maple v David Syme &Co Ltd [1975] 1 NSWLR 97 should not be taken as support for viewing the primary judge's order as based on res judicata or some equivalent estoppel. That is so because Maple v David Syme was not decided on that basis; and, further, the primary judge's reasons as a whole are consistent only with the action being an abuse because no monetary relief was available. 4 To such circumstances, Re Luck [2003] HCA 70; 78 ALJR 177 and Tampion v Anderson (1973) 48 ALJR 11 speak directly. Port of Melbourne Authority v Anshun Pty Ltd (No 1) [1980] HCA 41; 147 CLR 35 has no bearing on the matter. I do not consider it necessary therefore to address the various authorities dealt with in McColl JA's reasons on this subject. I express no views on those matters. 5 I also agree that, for the reasons given by McColl JA, leave was, in any event, required by the Supreme Court Act 1970 (NSW), s 101(2)(r). 6 I particularly agree with McColl JA's comments as to why the appellant should be held to how the case was fought below. 7 McCOLL JA: On 15 May 2007 Noel Francis Bracks, the appellant, commenced proceedings in the Supreme Court of New South Wales against Mr Ross Smyth-Kirk, the respondent, to recover damages for defamation (the "Smyth-Kirk proceedings"). The Smyth-Kirk proceedings complained of the publication by the respondent in September 2006 of a letter (the "campaign letter") campaigning for his election to the Committee of the Australian Jockey Club (the "AJC"). 8 The appellant also brought proceedings for defamation on 3 October 2006 against John Denoon to whom a testimonial reproduced in the campaign letter was attributed (the "Denoon proceedings"). The Denoon proceedings were settled on 30 April 2007 on the basis, relevantly, that there be a verdict and judgment for the appellant in the sum of $26,000. 9 The Smyth-Kirk proceedings were listed for hearing for five days commencing on 22 September 2008. By notice of motion filed on 25 August 2008, the respondent sought an order pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") that the proceedings be dismissed. The argument advanced on that application was that the proceedings were an abuse of process because by virtue of the judgment in the Denoon proceedings, s 5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (the "1946 Act") precluded the appellant from recovering any further damages in respect of the publication of the campaign letter. McCallum J acceded to the application, held the Smyth-Kirk proceedings were an abuse of process and ordered they be dismissed: Bracks v Smyth-Kirk [2008] NSWSC 930.

Competence of the appeal: the issues 10 The appellant filed and served a notice of intention to appeal which was served on the respondent on 25 September 2008. He filed a notice of appeal on 5 December 2008. 11 The respondent objected to the competency of the appeal, asserting that the primary judgment was interlocutory and that leave to appeal was required: s 101(2)(e) Supreme Court Act 1970 (NSW). His solicitors wrote to the appellant's solicitors communicating that view on 12 December 2008. By notice of motion filed on 5 January 2009 the respondent sought an order that the appeal be dismissed as incompetent: UCPR 51.41. A summons seeking leave to appeal and an extension of time in which to file the summons was filed on 9 February 2009. 12 Mr A Leopold of Senior Counsel, who appeared for the respondent below and on appeal with Mr M Richardson, contended that the primary judge's order was interlocutory because it was not final in legal effect. This was because notwithstanding that the effect of the primary judge's dismissal order was that the appellant could not recover damages in respect of any cause of action in tort arising from the respondent's publication of the campaign letter, the appellant could still bring proceedings seeking, inter alia, a declaration that the respondent had defamed him. 13 Mr T S Hale of Senior Counsel, who appeared with Mr J O Hmelnitsky for the appellant below and on appeal, submitted that the dismissal order was final in legal effect, thus giving the appellant an appeal as of right, because it precluded the appellant from recovering damages from the respondent for publishing the campaign letter. He argued that the basis of the dismissal order lay in the primary judge's conclusion that the appellant should have brought any proceedings against the respondent in respect of the publication of the campaign letter in the Denoon proceedings. Thus, he contended, the dismissal order created a res judicata estoppel in the sense referred to in Port of Melbourne Authority v Anshun Pty Ltd (No 1) [1980] HCA 41; (1980) 147 CLR 35 (at 38) ("Anshun (No 1)")

Competence of the appeal: consideration 14 In Re Luck [2003] HCA 70; (2003) 78 ALJR 177, the High Court (McHugh ACJ, Gummow and Heydon JJ) concluded that an order refusing leave to issue a writ of summons and a statement of claim on the basis that it disclosed no cause of action was interlocutory. 15 Their Honours explained (at [4], footnotes omitted) "As McHugh, Kirby and Callinan JJ stated in Bienstein v Bienstein , the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them . That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order." (emphasis added) 16 The Court referred (at [6]) to the fact that "[f]or more than a century, courts, including courts of the highest authority, have consistently held that an order staying an action on the ground that it is frivolous, vexatious or an abuse of process is an interlocutory order". Their Honours regarded that line of authority as having been confirmed by the Privy Council's decision in Tampion v Anderson (1973) 48 ALJR 11. Their Honours also referred (at [8]) to the High Court decisions which pre- and post-dated Tampion which were consistent with the view that an "order dismissing an action because it is frivolous, vexatious, an abuse of process or because it fails to disclose a reasonable cause of action" is interlocutory. 17 Those decisions were Pye v Renshaw [1951] HCA 8; (1951) 84 CLR 58 (order dismissing a suit if no amendment made to statement of claim within 21 days) Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 (order refusing an extension of time in which to sue), Carr v Finance Corporation of Australia Limited [No 1] [1981] HCA 20; (1981) 147 CLR 246 (order refusing to set aside judgment obtained upon default of defendant in delivering defence) and Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 (orders made by a single Justice (a) to dismiss an application to disqualify himself from hearing application for removal, and (b) to remove particular causes pending in the Family Court into the High Court). 18 Having conducted that review, the Court held (at [9]): "An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action." 19 Re Luck was applied in Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 where the Court (Allsop P, Tobias JA and Handley AJA) struck out as incompetent an appeal from an order made by Grove J pursuant to UCPR 13.4 summarily dismissing the putative appellant's action for damages for negligence. In holding that the summary dismissal order was interlocutory, the Court said: "11 The order of Grove J was interlocutory. This Court decided that in Wickstead v Browne (1992) 30 NSWLR 1 in dealing with the relevantly indistinguishable provisions of Part 13 of the then Supreme Court Rules, citing relevant decisions of the High Court and Privy Council: Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423 at 440; Tampion v Anderson (1973) 48 ALJR 11 at 12. The order for dismissal may be seen to have a degree of finality in practical effect, but the test is whether it was final in legal effect: Carr v Finance Corporation of Australia Limited [No 1] [1981] HCA 20; 147 CLR 246 at 248; Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [25]; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1998) 155 ALR 94 at 104-105. It was not final in legal effect because there was no triable issue, and it did not finally determine the rights of the parties or create res judicata estoppels. Whatever jurisprudential complexities lie behind the analysis, as the Privy Council made clear in Tampion v Anderson , clarity and consistency in approach is vital. The courts have had a consistent approach to the status of orders for, or to the effect of, summary dismissal since the 19th century: they are interlocutory. The High Court most recently reiterated this in In the Matter of An Appeal by Luck [ 2003] HCA 70; 78 ALJR 177 at 178-179, where the clear rule in Tampion v Anderson was expressly affirmed." 20 According to the line of authority reflected in Carr v Finance Corporation of Australia Limited [No 1] (see also Licul v Corney [1976] HCA 6; (1976) 180 CLR 213; Hall v Nominal Defendant) referred to in Macatangay (at [11]) an order is not final in legal effect if it is theoretically open to the disappointed person to make another application for the same relief as that disposed of by the order sought to be challenged, even if any later application would as a practical matter "be doomed to failure": Carr (at 248) per Gibbs CJ; Bienstein v Bienstein (at [25]) per McHugh, Kirby and Callinan JJ. In Gibbs CJ's view (Carr at 248), if a court looked at the practical rather than the legal effect of the judgment "the question whether a judgment is final or interlocutory would be even more uncertain than it is at the present", see also Mason J (at 256). 21 In the same year Carr was decided, the High Court (Gibbs J, Mason and Murphy JJ agreeing) considered in Anshun (No 1) the question whether a judgment perpetually staying proceedings was final or interlocutory. In that case McGarvie J perpetually stayed proceedings brought by the Port of Melbourne Authority as an abuse of process, on the basis the matters sought to be litigated could and should have been litigated in earlier proceedings. Anshun objected to the competency of the Port of Melbourne Authority's appeal to the High Court from the stay order, contending, on the basis of Tampion v Anderson, that McGarvie J's order was interlocutory. 22 Gibbs J noted that none of the authorities referred to in Tampion v Anderson concerned a stay granted on the ground that there was an estoppel of the kind which McGarvie J found. His Honour observed (at 38) that: "There may well be a difference between a case in which the action is frivolous or vexatious in the ordinary sense, or in which the proceedings disclose no reasonable cause of action, and a case in which the abuse of process lies in an attempt to litigate an issue which is res judicata, and Tampion v. Anderson has nothing to say about a case of the latter kind." 23 Gibbs J concluded (at 38), applying the view he had expressed in Licul (at 224 - 225), that the order staying the proceedings was final because "as a matter of reality …[it] does finally dispose of the rights of the parties". 24 Gibbs CJ did not refer to Anshun (No 1) in Carr, but Mason J noted (at 253 - 254) that Licul v Corney had been adopted and applied by the High Court in Anshun (No 1) to hold that "an order perpetually staying an action finally disposed of the case". 25 Anshun (No 1) was not referred to in Re Luck (or in Bienstein v Bienstein which was followed in Re Luck). It was not referred to expressly in Macatangay although the principle for which it is authority was implicitly acknowledged in the Court's observation (Macatangay (at [11])) that the order in that case did not "create res judicata estoppels". Anshun (No 1) was referred to in Platypus Leasing Inc v Commissioner of Taxation [2005] NSWCA 399 (at [28]) in which McClellan CJ (Handley and Tobias JJA agreeing) held that an order dismissing a summons seeking declaratory relief to determine the claimants' taxation liability on the basis that the Court was precluded by s 59 of the Taxation Administration Act 1953 (Cth) from granting the relief sought, was interlocutory. The order did not finally dispose of the claimants' rights because they could still be pursued via the statutory route s 59 afforded. McClellan CJ at CL did not refer to Re Luck. 26 There is an apparent tension between Anshun (No 1) and Re Luck arising from the emphatic statement in Re Luck that orders staying or dismissing proceedings as an abuse of process are interlocutory and the conclusion in Anshun (No 1) that an order perpetually staying proceedings as an abuse of process, was final. There is, as far as my researches reveal, no decision of this Court which discusses that tension. However it has been considered in the Federal Court of Australia, including in the Full Court, whose decisions this Court should follow unless satisfied they are plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 (at [135]); C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board; C.A.L. No 14 Pty Ltd v Scott [2009] HCA 47 (at [49]) per Gummow, Heydon and Crennan JJ. 27 Anshun (No 1) was applied by Kenny J in MZWHW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 466 (at [3] - [7]) without reference to Re Luck; Tamberlin J referred to MZWHW with approval in SZEEO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546 (at [11]) again without reference to Re Luck. Graham J applied Anshun (No 1) and MZWHW in NADZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 975 (at [29] - [30]). His Honour cited Re Luck as apparently conflicting with Anshun (No 1) but did not embark on any discussion of the two decisions. 28 In Applicant S 1000 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 285 (at [2]), however, Selway J observed that there may be some disagreement between Re Luck and Anshun (No 1) as to whether an order dismissing an action on the basis that it was vexatious or an abuse of process was an interlocutory order. He held that he should follow Re Luck as it was the most recent decision. In SZDEG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 748 (at [7] - [8]) Branson J, with some hesitation, and in the absence of either Full Court or the High Court consideration of the status of Anshun (No 1) following Re Luck, preferred Selway J's view in Applicant S 1000 to Kenny J's in MZWHW, again because Re Luck was decided after Anshun (No 1). 29 In Egglishaw v Australian Crime Commission [2007] FCAFC 183; (2007) 164 FCR 224 (at [43]), the Full Court of the Federal Court (Finn, Kenny and Edmunds JJ) concluded there was no inconsistency between Anshun (No 1) and Re Luck. Rather, the difference between the two decisions flowed "from the difference between the judgments from which an appeal was brought or sought to be brought". In their Honours' view (at [44]), Anshun (No 1) concerned a case "where an earlier judgment or proceeding preclude[d] a further judgment or proceeding, and the ordinary case, where a proceeding discloses no cause of action, is frivolous or vexatious, or is to be dismissed on some other basis involving no final determination of rights". 30 There appears to be a tension developing in judgments of the Full Federal Court concerning the question whether a summary judgment order made pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) is final or interlocutory: see Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60; (2008) 167 FCR 372 (at [12]) per Finkelstein J distinguishing Re Luck; (at [164], [173]) per Gordon J; cf Rares J (at [46] - [63]); cf Luck v University of Southern Queensland [2009] FCAFC 73; (2009) 176 FCR 268 (at [101]) per Rares J (Graham J agreeing); Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 259 ALR 319 (at [40] - [43]) per Spender, Graham and Gilmour JJ. I do not understand Farah requires a judge of an intermediate appellate court to seek to resolve a debate between appellate judges in another jurisdiction concerning a statutory provision (s 31A) which does not apply in the intermediate appellate court. This must be particularly so when there is a clear statement in the intermediate appellate court (Macatangay) concerning the effect of a summary dismissal pursuant to the local rule (UCPR 13.4). 31 In my view this Court is required to apply Anshun (No 1) notwithstanding the later decision in Re Luck. The ratio decidendi of Anshun (No 1) was that an order staying or dismissing proceedings as an abuse of process on the basis that a party is attempting to litigate an issue which is res judicata is a final order. This Court is bound to follow the ratio decidendi of High Court decisions, not decide for itself whether that decision should be departed from: Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395 (at [17]) per Gaudron, McHugh, Gummow and Hayne JJ. 32 Further, I accept, as explained in Egglishaw, Anshun (No 1) and Re Luck can be reconciled. This Court should follow Egglishaw unless it is plainly wrong: Farah (at [135]); C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board (at [49]) per Gummow, Heydon and Crennan JJ. I am not of that view. 33 In Re Luck, the Court said that the question whether an order was final or interlocutory turned on whether the order, as made, finally determined the rights of the parties in a principal cause pending between them. The words "the principal cause pending between them" are important. They echo Windeyer J's judgment in Hall v The Nominal Defendant (at 443 - 444) where his Honour explained that the question whether an order in an action was interlocutory depended on whether or not it resulted "in a final determination of that action" (emphasis added). Similarly, in Bienstein, in the passage referred to earlier in these reasons, the Court held an order was not final if it was still open to the party to make another application "for the same relief", no matter that it might fail. 34 Accordingly, while it might be accepted that a declaration may be made that a defendant has defamed a plaintiff (see P W Young QC, Declaratory Orders, 2nd ed (1984) Butterworths (at [1712])) that would not be an application for the same relief as the appellant seeks in the present proceedings. 35 Mr Leopold submitted that the case was on all fours with Platypus Leasing Inc v Commissioner of Taxation. However in that case the dismissal order was held to be interlocutory because the claimants could still pursue the same relief, albeit through a statutory route. It bears no analogy to the present case. 36 In my view the order dismissing the appellant's action as constituting an abuse of process because he could not recover any damages additional to those he had recovered in the Denoon proceedings created an estoppel against the appellant of the nature of that considered in Anshun (No 1). He could not make an application for the same relief as he sought in the present proceedings. The dismissal order disposed of the principal cause pending between the parties. It was, accordingly, a final order. 37 However this does not dispose of the respondent's objection to the competence of the appeal. The respondent also complains that even if the dismissal order was final, leave to appeal was still required because the appeal did not involve a matter at issue amounting to or of the value of $100,000 or more: s 101(2)(r), Supreme Court Act. This submission rather begged the question of the appeal, namely if the proceedings were allowed to proceed, could the appellant recover any amount greater than that recovered in the Denoon proceedings.

38 However the appellant filed an affidavit pursuant to UCPR 51.22 purporting to state facts demonstrating that the s 101(2)(r) restriction did not apply. I would accept the respondent's submission that the affidavit sworn pursuant to UCPR 51.22 failed to set out the material facts upon which the appellant relied to show that the s 101(2)(r) restriction did not apply. 39 The contents of the affidavit can be succinctly stated. First, the deponent swore that if the proceedings went to trial the appellant would rely on evidence that at the time of publication he was a member of the Committee of the Australian Jockey Club and that the matter complained of was published to all members of the Club. It did not state how many members there were of the Club. Next it asserted that the appellant would rely on "evidence of the damage to his reputation, his hurt to feelings, his desire for vindication and his knowledge of the falsity of the imputations." Finally it asserted the deponent's belief that if the appellant's claim was successful he would recover damages in excess of $100,000 even taking into account the sum awarded in the Denoon proceedings, were it necessary to do so. 40 The affidavit, in short, amounted to no more than bald assertions which did not provide any evidentiary basis for the deponent's belief as to the sum which might be awarded: cf Kassem v Colonial Mutual General Insurance Co Ltd [2001] NSWCA 38 (at [47]) per Rolfe AJA (Ipp AJA agreeing); see also Powell JA (at [4]). It is important that the affidavit relied upon to establish that the s 101(2)(r) restriction does not apply provides proper evidence to support that proposition, rather than apparently paying lip service to the obligation. Accordingly, in my view, the appellant failed to establish that the appeal involved a matter in issue amounting to or of the value of $100,000 or more. 41 The respondent raised several arguments contending that leave should be refused because the damages the appellant might recover would be less than $100,000. Those arguments raised the effect of s 35(1) (maximum amount of damages for non-economic loss in defamation proceedings) and s 38(1) (factors in mitigation of damages) of the Defamation Act 2005 (NSW) (the "2005 Act") at any ultimate trial. It is not appropriate, in my view, to embark upon an exploration of the matters the respondent seeks to rely upon both at going to the ultimate damages the appellant might be actually awarded, including the matters for mitigation. That would require the Court to speculate in areas based on the mere assertion of the respondent. It is sufficient to conclude that the appellant needs leave to appeal because he has failed to satisfy the s 101(2)(r) restriction. 42 I would grant leave to appeal. The case raises important issues concerning the effect of s 5(1)(b) on multiple defendant torts, not confined to the law of defamation. Legislative framework 43 The campaign letter was published in or about September 2006. Accordingly the proceedings were governed by the 2005 Act. Pursuant to that Act, a person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter: s 8. "Matter" is defined in s 4 to include "a letter, note or other writing". A person who has brought defamation proceedings for damages against any person in relation to the publication of any matter cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought: s 23. Evidence is admissible on behalf of the defendant in mitigation of damages for the publication of defamatory matter, that, in substance, the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, or has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter: s 38. 44 Section 5 of the 1946 Act relevantly provides: "5 Proceedings against and contribution between joint and several tort-feasors (1) Where damage is suffered by any person as a result of a tort (whether a crime or not): (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 (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, (c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought. (2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity…." 45 It is also relevant to note UCPR 6.19 which, relevantly, enables two or more persons to be joined as defendants in any originating process if separate proceedings by or against each of them would give rise to a common question of law or fact, and all rights of relief claimed in the originating process are in respect of, or arise out of, the same transaction or series of transactions, or if the court gives leave for them to be joined. 46 UCPR 6.19 clearly had its genesis in s 2(1)(a) of the 1946 Act which was to substantially the same effect and, applied to proceedings in the Supreme Court prior to the enactment of the Supreme Court Act 1970 (NSW). Section 2(1)(a), in turn, substantially found its origin in O 16, r 1 of the Orders made under the Judicature Act 1873 (UK). Section 2(1)(a) did not apply to the Supreme Court following the insertion of s 1A into the 1946 Act by the Second Schedule to the Supreme Court Act. This was no doubt because Part 8 r 2 of the Supreme Court Rules 1970 (NSW), the precursor of UCPR 6.19, performed the function of s 2(1)(a), but set it in the procedural context generally applicable to the Supreme Court. Section 1A was amended in 1978 to exclude the District Court from the operation of Part 2 of the 1946 Act: see the Law Reform (Joinder of Actions) Amendment Act 1978 (NSW). The latter Act was enacted to "remove doubts as to the validity of Part 7 of the District Court rules by removing the District Court from the operation of part 2 of the Law Reform (Miscellaneous Provisions) Act 1946": Second Reading Speech to the Law Reform (Joinder of Actions) Amendment Bill (Legislative Assembly, Parliamentary Debates, Hansard, 24 January 1978, at 11088).

The Denoon proceedings 47 Paragraph one of the original statement of claim filed in the Denoon proceedings asserted that Mr Denoon published of and concerning the plaintiff (the appellant in the present appeal) the words set out in Schedule A stated: "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. John Denoon - Property Developer, Racehorse owner." 48 The following particulars of publication (UCPR 15.19(a)) appeared in paragraph two: " Particulars The words set out in Schedule A were under the heading 'Testimonials for Ross Smyth-Kirk' on the reverse side of a letter dated September 2006 sent by Mr Smyth-Kirk to members of the Australian Jockey Club. The Defendant published the words himself to the recipients of the letter or alternatively published the words to Mr Smyth-Kirk and authorised him to republish the words and/or the republication of the words by Mr Smyth-Kirk was the natural consequence of the Defendant publishing the words to Mr Smyth-Kirk." (emphasis added) 49 The statement of claim next asserted in paragraph three that Schedule A conveyed the following imputations (UCPR 14.30(2)): "(a) That the Plaintiff as member of the Committee of the Australian Jockey Club refused to abide by a rule of the Club by which he was bound. (b) That the Plaintiff's conduct as a member of the Committee of the Australian Jockey Club was not acceptable in that having attained the age of 72 years he refused to abide by the rules of the Australian Jockey Club and retire as a member of Committee. Particulars The imputations were conveyed by the natural and ordinary meaning of the matter complained of or, alternatively, they were conveyed with the aid of the following extrinsic facts which were known to the persons to whom the matter complained of was public. (i) That the Plaintiff was a member of the Committee of the Australian Jockey Club and was its Vice-Chairman. (ii) The members of the Australian Jockey Club were each bound by the rules of the Club." 50 The appellant claimed aggravated damages on two bases. First, that the hurt to his feelings had been increased by his knowledge of the falsity of the imputations and secondly, by reason of Mr Denoon's failure to apologise after being called upon to do so in a letter from the appellant's solicitors. 51 Mr Denoon moved pursuant to UCPR 14.28 to strike out the appellant's statement of claim on the basis that the way in which the publications were pleaded in paragraphs two and three was embarrassing. The application was heard by Nicholas J in the Defamation List. His Honour delivered an ex tempore judgment: Noel Francis Bracks v John Denoon (Supreme Court of New South Wales, Nicholas J, 14 December 2006, unreported). 52 His Honour noted (at [3]), the plaintiff's contention that: "3. … the defendant is liable as a re-publisher for the publication by Mr Smyth-Kirk of the matter in schedule A. The plaintiff contends that in the circumstances it is sufficient for him merely to plead that the Denoon segment was contained in the Smyth-Kirk letter without more; in other words that it is sufficient to plead as the relevant publication the Denoon segment divorced from the contents of the Smyth-Kirk letter of which it is plainly a part." 53 His Honour held that the course the plaintiff had taken in merely pleading Schedule A was not open to him. In his Honour's opinion (at [4]) "when one is dealing with a publication which is said to constitute a republication, the preliminary exercise is to identify the content of that publication". He referred to various authorities including Sims v Wran [1984] 1 NSWLR 317 (at 320) where Hunt J said: "Where a prominent politician such as the defendant makes a statement at a press conference, it may be taken without doubt that the natural and probable result of his act will be that his statement will be republished in the media, thereby making him responsible for that republication … and usually in whatever form in which that republication takes place. …

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." 54 Nicholas J concluded (at [8]) that in that passage, Hunt J was "requiring the parties to focus on the particular publication which the plaintiff contends constituted a republication of the originally published defamatory matter". His Honour viewed Hunt J's observations as consistent with Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331, Dow Jones v Gutnik [2002] HCA 56; (2002) 210 CLR 575 and Hanrahan v Ainsworth (1985) 1 NSWLR 370 (at 372 - 373). 55 Nicholas J concluded (at [9] - [11]): "9. In my opinion 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 . 10. At the risk of overstating it, the Denoon segment which is said to be the defamatory matter, was communicated to the reader as part of the letter. That was the comprehensible form by which the matter was published and which constituted the relevant publication. Whether or not publication of the words complained of in the context of the letter constitutes a republication will ultimately be a matter for the plaintiff to prove. That, of course, is the central issue which he seeks to raise, but it seems to me the starting point is to identify and plead the publication which is said to amount to a republication for which the defendant is said to be liable . 11. Accordingly it seems to me that the defendant's objection is well-founded and that in the circumstances it is appropriate that the statement of claim in its present form be struck out with liberty to replead." (emphasis added) 56 Consequent upon his Honour's order, the appellant filed an amended statement of claim. Paragraphs one and two were in the same form as in the original statement of claim. However the particulars of publication of Schedule A appended to paragraph two now asserted that: "The words were published to Mr Ross Smyth-Kirk". 57 Paragraph 3 pleaded that Schedule A conveyed the same two imputations as had been pleaded in paragraph 3 of the original statement of claim. 58 Paragraphs 4 - 7 then stated: "4. The Defendant authorised Mr Ross Smyth [sic] to republish the words or the republication of the words was the natural consequence of the Defendant publishing the words to Mr Smyth-Kirk. 5. In or about 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. 6. The republication of the words in Schedule A conveyed the following imputations each of which was defamatory of the Plaintiff: - (a) That the Plaintiff as a member of the Committee of the Australian Jockey Club refused to abide by a rule of the Club by which he was bound. (b) That the Plaintiff's conduct as a member of the Committee of the Australian Jockey Club was not acceptable in that having attained the age of 72 years he refused to abide by the rules of the Australian Jockey Club and retired (sic) as a member of the Committee. (c) That the Plaintiff considered himself above the rules of the Australian Jockey Club in that having attained the age of 72 he refused to abide by the rules of the Australian Jockey Club, by which he was bound and which required him to retire from the Committee having attained the age of 72. Particulars The imputations were conveyed by the natural and ordinary meaning of the matter complained of or alternatively, they were conveyed with the aid of the following extrinsic facts each of which was known to the persons to whom the matter complained of was published: - i) That the Plaintiff was a member of the Committee of the Australian Jockey Club and was Vice Chairman. ii) The members of the Australian Jockey Club was [sic] each bound of [sic] the rules of the Club. 7. 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." (emphasis added) 59 The amended statement of claim repeated the claim for aggravated damages which appeared in the original statement of claim. 60 Schedule A was in the same form as Schedule A to the original statement of claim. Schedule B to the amended statement of claim was the campaign letter which is the matter complained of in the Smyth-Kirk proceedings. 61 It is unnecessary to set out Schedule B in its entirety. It was a single sheet of paper on one side of which appeared a photograph of a person identified as the respondent, a heading "September 2006, AJC Committee Election" and the salutation "Dear Fellow Member". Relevantly it said: "You may not be aware 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 the Members ….To vote for me, you must cross out only the names of Mr Bracks (who appears unwilling to comply with Members' wishes)…" (emphasis in original). 62 On 27 March 2007 Mr Denoon's solicitors served an offer of compromise on the appellant's solicitors advising that the defendant offered to compromise "all of the Plaintiff's claims in these proceedings" for $26,000 inclusive of interest but exclusive of costs, as well as pay the appellant's costs in terms the details of which it is unnecessary to repeat. The appellant accepted the offer of compromise on 23 April 2007. 63 The agreement as to judgment of 30 April 2007 in the Denoon Proceedings, pursuant to which, relevantly, there was a verdict and judgment for the plaintiff in the sum of $26,000, was entered in the Supreme Court's records on 28 May 2007. 64 The judgment debt has been satisfied in full: primary judgment (at [16]).

The Smyth-Kirk proceedings 65 Paragraph 2 of the statement of claim in the Smyth-Kirk proceedings pleaded that in about September 2006 the respondent published of and concerning the plaintiff the matter set out in the campaign letter. 66 Paragraph 3 complained that the matter complained of conveyed the following allegedly defamatory imputations: "(a) That the Plaintiff as member of the Committee of the Australian Jockey Club refused to abide by a rule of the Club by which he was bound. (b) The Plaintiff was unfit to be a member of the Committee of the Australian Jockey Club because, having attained the age of 72 years, he refused to abide by lawful requirement that he retire as a member of the Committee." 67 The appellant's claim for damages included a claim for aggravated damages on the basis that "the hurt to his feelings has been increased by his knowledge of the falsity of the imputations." 68 It is relevant to note at this stage the correspondence between the imputations the appellant pleaded in the Smyth-Kirk proceedings and those pleaded in the Denoon proceedings. The first imputation in the Smyth-Kirk proceedings (3(a)) was identical with imputations 3(a) and 6(a) in the Denoon amended statement of claim. Imputation 3(b) in the Smyth-Kirk proceedings substantially corresponded to imputations 3(b), 6(b) and 6(a) in the Denoon proceedings. All four depended upon the proposition that the appellant's conduct was to be criticised because, having attained the age of 72 years he refused to abide by the rules of the AJC and retire from the committee.

Primary judgment 69 The respondent's argument on the motion was that the proceedings should be dismissed on the grounds that the appellant had already "recovered a sum in respect of the damage suffered by him as a result of the same publication" in the Denoon proceedings, that s 5(1)(b) of the 1946 Act precluded him from recovering any further sum and that the proceedings were, accordingly, an abuse of process: primary judgment (at [2]). 70 After recording the history of the Denoon Proceedings, the primary judge noted (at [19]) that the verdict entered in favour of the appellant in the sum of $26,000 in the Denoon proceedings represented the amount of the damages awarded for the damage suffered by the appellant as a result of the tort committed by Mr Denoon. She then observed that the application before her turned on whether the Smyth-Kirk Proceedings were brought in respect of "that damage" against a tortfeasor liable in respect of the same damage. 71 Before the primary judge, Mr Leopold submitted that s 5(1)(b) of the 1946 Act applied because "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": primary judgment (at [23]). 72 The primary judge rejected that submission as not being strictly accurate, pointing out that even if the respondent and Mr Denoon were liable as joint tortfeasors in respect of the letter's publication, the appellant had a separate cause of action against each of them. However that did not, in her Honour's view, undermine the force of Mr Leopold's contention. She observed (at [23]):

"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." 73 Mr Hale submitted that s 5(1)(b) did not have the operation for which Mr Leopold contended because (primary judgment at [24]): "24. … a) … 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) … 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 Smyth-Kirk." 74 In elaboration of his two submissions, Mr Hale contended that in the amended statement of claim in the Denoon Proceedings, the appellant had sued only on the original publication by Mr Denoon to Mr Smyth-Kirk of Schedule A, 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: primary judgment (at [34]). 75 The primary judge rejected Mr Hale's submissions. She held (at [29]) that the issue whether an original publisher was liable "as a publisher of the republication" was considered in the light of the three principles stated in Speight v Gosnay (1891) 60 LJQB 231 (at 232), namely whether the original publisher authorised or intended the republication; where the person to whom the original publication was made was under a duty to repeat the statement and/or where the republication was the natural and probable result of the original publication. 76 In the primary judge's view (at [30]) a plaintiff who sued only on the original publication, relying on the republication as part of the damage caused rather than as a discrete cause of action, did not have to plead or establish the matters referred to in Speight v Gosnay. In her view such a plaintiff merely had to establish that, "in accordance with the general principles relating to damages in tort, the republication was part of the damage caused by the original publication". 77 Mr Hale argued that the references to the campaign letter in the amended statement of claim appeared because the effect of Nicholas J's decision was to require the plaintiff to 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' … [and] that was something different from having to plead the whole letter as the publication said to amount to a republication": primary judgment (at [36]). 78 The primary judge concluded that even if Mr Hale had correctly identified the basis for Nicholas J's decision, that did not assist him. In her Honour's view (at [37]) "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". 79 Her Honour held (at [43]): "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.'" 80 However the primary judge rejected Mr Hale's submission about the characterisation of the pleadings in the Denoon proceedings. She concluded (at [46]) that the words of amended statement of claim, as well as three additional matters referred to below, 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. 81 The first of the three additional matters relied upon by the primary judge (at [47]) was that "the amended pleading identified an additional imputation alleged to arise from the republication". In her Honour's view, if it had been intended to rely only on that part of the letter identified as Schedule A, "the same imputations would arise from each of the matters". She observed that it was "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". 82 The second matter was that the amended statement of claim included a plea of true innuendo which, in her Honour's view, was relied only in respect of the republication. Her Honour concluded (at [48]) that such a plea was directed to "the issue of publication, [meaning] comprehension of the publication by the reader" and it was "quite inconsistent with the claim that it was not intended to rely on the republication as a separate cause of action." 83 The third matter (at [49]) was that in her Honour's view the pleading in paragraph 4 of the amended statement of claim 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". While, in her Honour's view, it was "perhaps … an overstatement to say those matters were only relevant to that issue", she concluded "they were couched in the language of the elements of joint liability for republication." 84 The primary judge also rejected Mr Hale's submission that the appellant suffered "different damage by reason of the acts of each joint tortfeasor in respect of the publication of the letter". In her Honour's view (at [52]) it was not consistent with the principle that it was the publication, not the composition of a libel, which is an actionable wrong, to contend that a person suffered actionable damage on account of the conduct of one of the joint tortfeasors who participated in the publication and a separate actionable damage in respect of the participation by another joint tortfeasor. Her Honour observed that it was the essence of joint liability that once liability as a joint tortfeasor was established, each joint tortfeasor was liable for the whole of the damage. 85 Accordingly, her Honour concluded (at [53]) that the proceedings against Mr Smyth-Kirk were "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". This conclusion meant that, pursuant to s 5(1)(b) of the 1946 Act, the appellant could not recover any additional sum in respect of that tort. 86 The matter proceeded before her Honour on the basis that if Mr Leopold's submissions were accepted, it would amount to an abuse of process for the appellant to maintain the Smyth-Kirk proceedings: primary judgment (at [54]). Her Honour did not accept that apparent concession by the appellant at face value. Rather she also concluded it would be an abuse of process for the appellant to maintain proceedings in which he could recover no additional sum, applying Maple v David Syme [1975] 1 NSWLR 97. In that case, Begg J held 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. Submissions 87 The appellant's essential submission, embodied in the first ground of appeal, is that the primary judge erred in concluding (at [46]) that the cause of action he pleaded against Mr Denoon was as a joint tortfeasor with the respondent in respect of the campaign letter. Rather, he contends (ground two) the primary judge should have held that he had sued Mr Denoon for the publication of defamatory material to the respondent, including for the loss resulting from the republication of that defamatory material by the respondent in the campaign letter. 88 Finally he contends (ground three) that the primary judge erred in concluding that his claim against the respondent for publication of the campaign letter was "in respect of the same damage" as the damage which was the subject of the Denoon proceedings, within the meaning of s 5(1)(b) of the 1946 Act. He contends her Honour should have held that the two proceedings were concerned with different "damage". It should be noted at once that the words the appellant's third ground of appeal set out in quotation marks as if they appear in s 5(1)(b) are not in that subsection, but appear only in subsections 5(1)(a) and (c). 89 Mr Hale submitted that the damage in respect of which the appellant proceeded against Mr Denoon and the respondent was different because their tortious acts, that is to say, their respective publications, differed. He also argued that the "damage" was not the same because the appellant's entitlement to be vindicated for each publisher's tortious conduct differed depending on "factors unique to each defendant" and because the quantum of compensatory damages he might recover from each defendant might differ due to the different claims he made for aggravated damages. 90 Mr Hale also challenged the primary judge's conclusions in respect of the three additional matters which her Honour concluded supported the proposition that the appellant had pleaded a cause of action against Mr Denoon as a joint tortfeasor in the publication of the campaign letter. 91 Insofar as the primary judge relied (at [47]) on the additional imputation pleaded in paragraph 6(c) of the amended statement of claim, Mr Hale submitted that the exercise in which the Court was engaged was to identify the defamatory matter sued upon and the damage in respect of which the Denoon proceedings were brought and not the imputations the appellant had pleaded. He also submitted that, in any event, the additional imputation was untenable with the consequence, I assume, that the primary judge ought to have ignored it. 92 Secondly, Mr Hale submitted that the pleading of a true innuendo was not inconsistent with the appellant's claim that republication was relevant only to damages. Finally, Mr Hale contended that, contrary to her Honour's conclusion, that the particulars of publication in paragraph 4 of the amended statement of claim in the Denoon proceedings were "couched in the language of the elements of joint liability for republication", they were pleaded in terms of the Speight v Gosnay requirement that a plaintiff particularise the basis upon which it is contended that a republication was the natural and probable, or intended, consequence of the defendant's original publication. 93 Mr Leopold's essential submission was that it did not matter for the purposes of s 5(1)(b) whether the appellant had proceeded in the Denoon proceedings on the basis that Mr Denoon was liable as having published the words contained in Schedule A to Mr Smyth-Kirk and for the foreseeable consequences of that publication being the damage flowing from their inclusion in the campaign letter and its publication by Mr Smyth-Kirk, or had sued Mr Denoon as publisher of both the words contained in Schedule A and the campaign letter. Whichever was the case, he argued, the Denoon proceedings were brought by the appellant to remedy the injury to his reputation arising from the damage which flowed to it from the publication of the campaign letter to members of the AJC and that injury was the same "damage" as that in respect of which he sought to recover in the present proceedings, again being the injury to his reputation resulting from the publication of the same campaign letter to the same recipients.

Section 5 of the 1946 Act 94 In order to understand the operation of s 5 of the 1946 Act it is necessary to understand aspects of the common law concerning joint and concurrent tortfeasors. Many of the changes s 5 effected are well understood. However the operation of s 5(1)(b) in the circumstances raised in this case has not, so far as counsel and my researches reveal, been considered previously. 95 Joint tortfeasors are responsible for the same wrongful act or tort leading to a single damage. Concurrent tortfeasors are independent tortfeasors whose separate acts combine to produce damage. The difference between joint tortfeasors and several (concurrent) tortfeasors is that the former are responsible for the same tort whereas the latter are responsible only for the same damage. For there to be joint tortfeasors there must be a concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage: Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635 (at [18]) per Gleeson CJ and Callinan J; Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574 (at 580 - 581) per Brennan CJ, Dawson and Toohey JJ. 96 At common law, by virtue of the rule in Brinsmead v Harrison (1872) LR 7 CP 547, a person who suffered damage as a result of a joint tort had only one cause of action which merged in the first judgment recovered in respect of it. Section 5(1)(a) of the 1946 Act abolished that rule both in cases where joint tortfeasors were sued in the one action as well as where separate actions were brought: Baxter (at [21], [23], [25]) per Gleeson CJ and Callinan J. It permitted successive actions to be brought against individual joint tortfeasors: Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271 (at 288) per Taylor J (Kitto J agreeing). 97 At common law, a plaintiff damaged by the acts of concurrent tortfeasors was subject to different limitations from a plaintiff injured by the act of joint tortfeasors. Because several (concurrent) tortfeasors were severally liable "on separate causes of action", they could not be joined as defendants in one action: Baxter (at [19]) per Gleeson CJ and Callinan J; Spicer v Carmody (1948) 48 SR (NSW) 348 (at 351) per Jordan CJ. Thus several (concurrent) tortfeasors causing the same damage had to be sued in separate actions, even though each was responsible for the full amount of the damage suffered. The entry of judgment in an action against one concurrent tortfeasor was no bar to actions against the others because the plaintiff had a distinct cause of action against each of them: Thompson (at 608) per Gummow J. Several tortfeasors causing different damage also had to be sued in separate proceedings and were liable only for the damage each had caused: Speirs v Caledonian Collieries Ltd (1956) 57 SR (NSW) 483 (at 511) per Myers J, Street CJ and Herron J agreeing (at 503); see also Baxter (at [19]) per Gleeson CJ and Callinan J. 98 However once a judgment recovered against one concurrent tortfeasor was satisfied, the plaintiff's cause of action was at an end. Having received full compensation from the one concurrent tortfeasor, the plaintiff could not recover any more: Bryanston Finance Ltd v de Vries [1975] QB 703 (at 730) per Lord Diplock; Tang Man Sit v Capacious Investments Ltd [1996] AC 514 (at 522) (Privy Council); Jameson v Central Electricity Generating Board [2000] 1 AC 455 (at 473) per Lord Hope of Craighead (with whom Lord Browne-Wilkinson and Lord Hoffmann agreed); Thompson v Australian Capital Television Pty Ltd (at 608) per Gummow J; Baxter (at [43], [46] - [48]) per Gleeson CJ and Callinan J; see also (at [56]) per Gummow and Hayne JJ; Multiplex Constructions Pty Ltd v Irving; Fugen Holdings Pty Ltd v Irving [2004] NSWCA 346 (at [6]) per Santow JA citing Glanville Williams (at 33). 99 The rule that several concurrent tortfeasors could not be joined as defendants in the one action was overcome by s 2(1)(a) of the 1946 and rules of Court such as UCPR 6.19 to which I earlier referred: Spicer v Carmody (at 351); see also Speirs v Caledonian Collieries Ltd (at 511 - 512) per Myers J, Street CJ and Herron J agreeing (at 503); Kelly v Narrandera Shire Council [1998] NSWCA 121 (at 8 - 11) per Powell JA. Such provisions were intended to avoid a multiplicity of proceedings where reasonably practicable: News Ltd v Aust Rugby Football League Ltd (1996) 64 FCR 410 (at 524) per Lockhart, von Doussa and Sackville JJ. 100 Section 2(1)(a) of the 1946 Act was, however, directed to "an unessential point of procedure": Spicer v Carmody (at 351). It did not affect the principle that a plaintiff is entitled to separate judgments for the full amount against concurrent tortfeasors held to be liable whose wrong produced the same damage: Speirs v Caledonian Collieries Ltd (at 503) per Street CJ and Herron J; (at 512) per Myers J; see also Timberland Property Holdings Pty Ltd v Julie Bundy [2005] NSWCA 419 (at [55]) per Basten JA (Handley JA and Hunt AJA agreeing); Maricic v Dalma Formwork (Australia) Pty Ltd & Anor [2006] NSWCA 174 (at [70]) per Basten JA (Beazley and Ipp JJA agreeing). 101 Provisions such as s 2(1)(a) and UCPR 6.19 are liberally construed: see Richardson v Trautwein [1942] HCA 5; (1942) 65 CLR 585 (at 592 - 593) per Starke J; (at 596 -598) per McTiernan J; (at 601) per Williams J, agreeing and adding his own reasons; as an illustration of this approach, see Chadwick v Bridge [1951] HCA 11; (1951) 83 CLR 314. In order to be able to join more than one plaintiff or defendant pursuant to UCPR 6.19, it is not necessary that each proposed party was involved in all of the transactions or that each cause of action involve all of the transactions: Stroud v Lawson [1898] 2 QB 44 (at 54 - 55); Payne v Young [1980] HCA 54; (1980) 145 CLR 609 (at 618) per Mason J (Stephen J agreeing). In the defamation area, "the same transaction or series of transactions" refers to the "same publication or series of publications": Smith v Foley [1912] VLR 314 (at 316 - 317) per Madden CJ, referring to W Blake Odgers, Libel and Slander, (5th ed) Stevens & Sons Limited. It would clearly have been open to the appellant to bring defamation proceedings against Mr Denoon and the respondent in one action, even if he only sought to pursue Mr Denoon for the damages which flowed from the publication of Schedule A in the campaign letter without alleging Mr Denoon had published the campaign letter itself.

Section 5(1)(b) of the 1946 Act 102 The Third Interim Report, (1934) (Cmd 4637) of the Law Revision Committee (Great Britain) which led to the enactment of s 6(1) of the Law Reform (Married Women and Tortfeasors) Act 1935 (UK) (adopted in s 5 of the 1946 Act) was expressly directed to address the common law doctrine that there could be no contribution between tortfeasors. The Committee concluded (at [7]) that a right of contribution should be given to both joint and concurrent tortfeasors. That right was conferred by s 5(1)(c) which, read with s 5(2), created a right and remedy of contribution which did not exist at common law: James Hardie and Co v Seltsam Pty Ltd [1998] HCA 78; (1998) 196 CLR 53 (at [2], [24]) per Gaudron and Gummow JJ; Callinan J (at [116]); (at [60]) per Kirby J (McHugh J agreeing); Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; 216 CLR 109 (at [2]) per Gleeson CJ, Gummow and Hayne JJ. 103 In explaining the desirability of abolishing the rule in Brinsmead v Harrison, the Law Revision Committee noted that the merits of the rule were said to be the prevention of a multiplicity of actions as well as the possibility that a second jury might award more damages than the first. The Committee suggested (at [11]) that the rule should be altered only in respect of unsatisfied judgments, "with the provision that the plaintiff should not be able to obtain by execution, in the aggregate, more than the amount awarded in the first judgment". 104 Accordingly the Committee recommended (at [12] I and III), relevantly, that where a judgment was recovered against either joint or concurrent tortfeasors, the plaintiff should not be able to levy execution for, or be paid, a sum exceeding in the aggregate, the amount of the first judgment obtained against any of the persons so liable, nor be able to recover the costs of any subsequent action, unless the Judge before whom any subsequent action was tried was of the opinion that there was reasonable ground for bringing it. It is that recommendation which is reflected in s 5(1)(b). 105 The most succinct statement of the scope of s 5(1)(b) appears in Baxter (at [29]) where Gleeson CJ and Callinan J pointed out: "[Section 5(1)(b)] applies 'if more than one action is brought', and it refers to 'those actions'. At first sight, it appears to be directed to the problem of multiplicity of actions. It applies to actions against joint tortfeasors, and several concurrent tortfeasors. It operates in relation to the recoverability of sums awarded under judgments rather than upon rights of action. It does not bar proceedings. It limits recoverability. And it is also concerned with legal costs…" (emphasis added)

Their Honours added (at [36]) that "s 5(1)(b), in cases where it operates, has an effect that might be described as preventing double recovery". 106 Other observations concerning the purpose of s 5(1)(b) (and its legislative equivalents) can be briefly noted. In XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448 (at 469) Brennan J (see also Gibbs CJ (at 460)) said its object was to prevent excessive recovery by a plaintiff consequent on the creation of multiple causes of action against tortfeasors. The latter remarks, at least insofar as they concern the creation of multiple causes of actions, should be understood to be confined to joint tortfeasors for the reasons I have explained. However the concern to prevent excessive recoveries is equally applicable to concurrent tortfeasors. This was made clear by Kirby J who observed (Baxter (at [87])) that s 5(1)(b) was concerned to "control … the aggregate recovery so as to prevent double dipping by reason of the reform effected in [s 5(1)(a)]; and control … 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." 107 In Baxter, the High Court held that s 5(1)(b) did not operate where a plaintiff brought one action against joint tortfeasors, settled against one, then sought to pursue the proceedings against the remaining joint tortfeasor. However the plaintiffs' right to do so was maintained only because the Court was satisfied that they had not fully recouped their loss in settling with one of the tortfeasors and because it was apparent from the circumstances of the settlement that the plaintiffs intended to pursue the remaining claim. 108 In XL Petroleum, the High Court held that s 5(1)(b) did not preclude a plaintiff recovering different awards of damages against joint tortfeasors, whether in the same or different proceedings, where the difference was reflected in an award of exemplary damages against one of them. Gibbs CJ (at 459 - 460) (Wilson J agreeing) reached that conclusion without discussing the effect of s 5(1)(b). Mason J (at 464) agreed with Gibbs CJ's conclusion insofar as the differing judgments might reflect exemplary damages, but made it plain that, in his view, any award of compensatory damages would be the same against all co-defendants. Murphy J (at 464) confined his agreement with the Chief Justice to the proposition that differing judgments might be given where exemplary damages were awarded. 109 Brennan J also agreed that differing awards could be made where the difference was reflected in exemplary damages. In reaching that conclusion he analysed the operation of s 5(1)(b). In his view (at 466), "[i]f the evidence in successive actions were to lead to differing awards of compensatory damages, s 5(1)(b) would prevent the judgment creditor from receiving an amount exceeding the amount first awarded". Section 5(1), in his Honour's view (at 467) was "not intended to multiply the damages recoverable by a plaintiff but to facilitate their recovery … [so that] once the plaintiff has recovered in full the amount to which he is entitled for the damage suffered by him, causes of action that have not merged in judgments must then be taken to be barred as between the plaintiff and the tortfeasors against whom the causes of action lay". The latter proposition reflects the satisfaction principle referred to in the Bryanston Finance line of authority to which I earlier referred. 110 While Brennan J expressed the view (at 467 - 468) that following the enactment of s 5(1) damages could "be awarded against each tortfeasor in the amount for which he is shown to be liable" with "[t]he quantum of an award depend[ing] on the circumstances of the individual case", he added that "the satisfaction of multiple judgments in successive actions is subject to the provisions of s 5(1)(b)". His Honour concluded (at 469 - 470) that s 5(1)(b) referred to compensatory damages alone, ensuring that the "damage suffered by any person" (s 5(1)) for which all joint tortfeasors were responsible did not result in judgments which entitled a plaintiff to receive more than the damages assessed against the tortfeasor who first became a judgment debtor. On the other hand, his Honour thought that the better view of s 5(1)(b) and (c) was that they did not relate to exemplary damages which were awarded not to compensate the plaintiff but to punish and deter the wrongdoer. 111 Although Brennan CJ's observations referred only to joint tortfeasors, they apply to all tortfeasors (whether concurrent or several) to whom s 5(1)(b) applies. They reflect the view of text writers that s 5(1)(b) prevented the outcome contemplated in The Koursk [1924] P 140, namely that at common law, where a plaintiff sued concurrent tortfeasors in separate proceedings, it was possible for the plaintiff to recover different awards of damages in the separate proceedings: see Glanville L Williams, Joint Torts and Contributory Negligence, (1951) Stevens & Sons Limited (at s10(2)); Clerk and Lindsell on Torts, 14th ed (1975) Sweet & Maxwell (at [635], footnote 10). In short, even if a plaintiff in a later action to which s 5(1)(b) applies, might be entitled to damages greater than those awarded in the first action, the effect of s 5(1)(b) is that the trial judge may only enter judgment for an amount which does not exceed the first award.

The meaning of "damage" in s 5 of the 1946 Act 112 The leading cases on the meaning of "damage" for the purposes of s 5(1) of the 1946 Act have been decided in the context of determining whether a person may make a claim for contribution pursuant to s 5(1)(c). The word "damage" in s 5(1)(c) refers back to the introductory words to s 5(1) which must have the same meaning wherever it appears in s 5(1). 113 The effect of the contribution cases is that "damage" in s 5(1) is not to be equated to the "damages" awarded by a court, but is what the plaintiff suffers as the foreseeable consequence of the tortfeasor's act or omission. Where a tortfeasor's negligent act or omission causes personal injury, "damage" includes both the injury itself and other foreseeable consequences suffered by the plaintiff. Concurrent tortfeasors whose tortious acts or omissions occur successively, rather than simultaneously, may both be liable for the "same damage" in the s 5(1)(c) sense, being a foreseeable consequence of both torts, although one is liable for some only of the damage for which the other is liable and an award of damages against the one would necessarily be less than an award of damages against the other: Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 (at [202]) referring to Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 (at 527). 114 These propositions can best be put in context by reference to the facts in Mahony. In that case an employee brought an action in negligence against his employer, Kruschich, alleging that he had been injured in the course of his employment. The statement of claim gave particulars of his injuries and disabilities and alleged that the plaintiff's injuries required considerable medical treatment. Kruschich sought by cross-claim to recover contribution pursuant to s 5(1)(c) from Dr Mahony on the basis that he had been negligent in the manner in which he had treated the plaintiff. Dr Mahony sought to strike out the cross-claim as disclosing no reasonable cause of action. 115 One of the arguments Dr Mahony advanced was that the "damage" to which s 5(1)(c) referred was "the same damage" as that to which s 5(1)(b) refers - that is, damage in respect of which an action may be brought against both tortfeasors. He contended that s 5(1)(c) must have a reciprocal operation so that either tortfeasor may recover contribution from the other in respect of the damage to which s 5(1)(c) applied. As Kruschich, was "liable for more 'damage' than the damage for which" he might be liable, he argued there was no identity in the "damage" and s 5(1)(c) could not operate: Mahony (at 531). The Court accepted that the "damage" to which s 5(1)(c) referred was the same "damage" as that to which s 5(1)(b) referred, but rejected Dr Mahony's second argument, saying (at 531): "It is clear, of course, that any damage for which Kruschich alone is liable could not be the subject of contribution by Dr Mahony, but there is no reason why the damage for which both alleged tortfeasors are liable cannot be identified and why s 5(1)(c) cannot operate with respect to that damage. The damage for which both tortfeasors are liable is indeed the same damage , but the circumstance that the first tortfeasor is alone liable for whatever damage is caused before the subsequent tort is committed is no argument against apportioning liability for the damage caused by both tortfeasors." (emphasis added)

Accordingly the High Court held Kruschich's cross-claim should not be struck out. 116 The concept of the "same damage" for the purposes of s 23B(1) of the Wrongs Act 1958 (Vic) was considered in Alexander v Perpetual Trustees WA Ltd again in the context of whether a claim for contribution could be made. Section 23B had been amended in 1985 to permit contribution between persons "liable in respect of the same damage" whether "the legal basis of liability arose out of a breach of contract, a breach of trust or otherwise": Alexander (at [22]). While, accordingly, it had "no precise analogue in other Australian jurisdictions" (Alexander (at [4])), the conceptual similarities with s 5 of the 1946 Act are such that the Court's reasoning on the issue of what constitutes "the same damage" for the purpose of the contribution provision, and by analogical reasoning s 5(1) generally, should be taken into consideration. Section 23B(1) provided: "Subject to the following provisions of this section, a person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with the first-mentioned person or otherwise)." 117 In Alexander, Gleeson CJ, Gummow and Hayne JJ referred, with approval, to Lord Bingham of Cornhill's description in Royal Brompton Hospital NHS Trust v Hammond [2002] UKHL 14; [2002] 1 WLR 1397; [2002] 2 All ER 801 (at [6]) of the questions which arise when a claim for contribution is made, they being: "(1) What damage has A suffered? (2) Is B liable to A in respect of that damage? (3) Is C also liable to A in respect of that damage or some of it?" 118 Those questions reflected Lord Bingham's view (at [5]) (with which Lord Mackay of Clashfern, Lord Steyn, Lord Hope of Craighead and Lord Rodger of Earlsferry agreed) that principles and/or statutory provisions enabling contribution claims rest on the proposition that those with whom a claimant seeks to share his or her liability to the plaintiff are "(whether equally with [the claimant] or not) subject to a common liability to [the plaintiff]". His Lordship's view was endorsed (at [27]) by Lord Steyn (with whom Lord Bingham, Lord Mackay of Clashfern, Lord Hope of Craighead and Lord Rodger of Earlsferry also agreed), saying, "the notion of a common liability, and of sharing that common liability, lies at the root of the principle of contribution". 119 In Alexander (at [27], [37]) Gleeson CJ, Gummow and Hayne J endorsed this characterisation of the liability to which contribution claims in respect of "the same damage" are directed, observing that "[t]he Act directs attention to a common liability by using in s 23B the expression 'in respect of the same damage'." The statutory creation of rights of contribution, in their Honours' view, was addressing the situation "[w]here a person has suffered damage in connection with some transactions or events involving the wrongful conduct of others" and sought "to address the injustice that may result in some cases if the victim, by his or her selection of defendants, could throw the burden of liability on to one or some of the wrongdoers, to the exclusion of the others". 120 Applying those principles their Honours held (at [33]) that Minters had not established any entitlement to contribution pursuant to s 23B in circumstances where the trustees (PTWA and PT) from which the firm sought contribution were liable to the plaintiffs for breach of "first level trusts", whereas Minters had been held liable to PTWA and PT for breach of different trusts (the "second level trusts") and was not liable to the plaintiffs for that breach. 121 It follows from Mahony and Alexander that s 5(1)(b) will apply where the plaintiff's first and successive actions claim relief in respect of what the plaintiff has suffered as the foreseeable consequence of the acts or omissions of joint, concurrent or several tortfeasors, whether those foreseeable consequences wholly or partly flow from each party's tort. It has also been held that a claim will be in respect of the same "damage" in the sense explained in Mahony, even though "various damages may have been suffered under different heads": State of South Australia v Mountford [2001] SASC 85; (2001) 79 SASR 389 (at [34]) per Williams J (Olsson and Duggan JJ agreeing); (special leave refused: Mountford v State of South Australia (2002) 23(7) Leg Rep SL2).

Liability for publication of defamatory matter 122 The tort of defamation occurs when a person publishes matter which causes damage to another's reputation and that publication is comprehended by the reader, listener or observer: Webb v Bloch (at 363 -364 per Isaacs J; Dow Jones v Gutnik (at [25] - [26]); see also John Fairfax Publications Pty Limited v Obeid [2005] NSWCA 60; (2005) 64 NSWLR 485 (at [88] - [96]). 123 The circumstances in which a person might be held liable for the publication of defamatory matter he or she did not directly communicate to a third party were discussed in Habib v Radio 2UE Sydney (McColl JA, Giles and Campbell JJA agreeing) as follows: "121 Liability as a principal for publication of defamatory material depends upon participation: see Gatley (at [6.16]). All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggests illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected: Webb v Bloch (at 364) per Isaacs J. Such persons are regarded as joint tortfeasors: Webb v Bloch (at 359) per Knox CJ. … 122 However, prima facie, an original publisher is not liable for the voluntary republication of its defamatory statement by a third party over which it has no control, or for the damage caused: Ward v Weeks (1830) 7 Bing 211. The voluntary act of the third party publisher breaks the chain of causation: McManus v Beckham [2002] 4 All ER 497; [2002] 1 WLR 2982 (at [15] - [26]) per Waller LJ. 123 Nevertheless, an original publisher of defamatory matter may be liable for its republication where the republication was the natural and probable result of the original publication: Speight v Gosnay (at 232) per Lopes LJ; Ainsworth v Burden [2003] NSWCA 90; (2003) 56 NSWLR 620 (at [5]) per Handley JA (Hodgson JA and Grove J agreeing). In those circumstances, a plaintiff is entitled to complain only of the original publication, but to seek also to recover as a consequence of that original publication, the damage the plaintiff says was suffered by reason of its repetition or republication where the defendant is responsible for that repetition or republication: Cutler v McPhail [1962] 2 QB 292 (at 298 - 299) per Salmon J; Sims v Wran [1984] 1 NSWLR 317 (at 320) per Hunt J (as his Honour then was); Ainsworth v Burden (at [5]). 124 The question whether the original publisher is liable for the voluntary republication of its defamatory statement or for the damage its republication caused is the same causation question which arises in 'any other tort case where it is sought to make the defendant liable for harm which is directly attributable to the voluntary act of a third person': Gatley (at [6.36]); A M Dugdale, M Jones and M Simpson, Clerk & Lindsell on Torts, 19th ed (2006) Sweet & Maxwell (London) (at [23-217] - [23-219])."

124 As is apparent from these passages an original publisher may be liable for the publication of his or her defamatory utterances or writings in two circumstances. First, when by reason of direct participation in the publication, whether, for example, by providing defamatory material to another for inclusion in a publication, by actually incorporating the defamatory material in a larger document for publication or physically publishing the completed document, he or she is regarded as a principal in the publication. It matters not that the first person in this illustration does not physically distribute the final document: Webb v Bloch (at 363). 125 The second circumstance in which an original publisher may be liable for the publication of his or her defamatory utterances or writings is that discussed in Speight v Gosnay: where the original publisher's statement is published, apparently voluntarily, by a third party. In Speight v Gosnay (at 232) Lopes LJ explained the circumstances in which the defendant (who had made a defamatory allegation about the chastity of a young unmarried woman to the latter's mother which the young woman repeated to her fiancé, who thereupon refused to marry her), might be liable for the repetition of his words: "The words used here are not actionable of themselves. In order to make them actionable, the plaintiff must shew that she has suffered some special damage in consequence of the uttering of those words. In this case she must make out that by reason of those words being uttered she has lost the marriage. If she has lost the marriage it is clear that that loss is primarily due, not to the utterance of the slander, but to its repetition . That being so, it cannot be said that the injury directly resulted from the slanderous words of the defendant. But there are certain cases where an action against the slanderer may be maintained for the repetition of the slander . These cases may be divided into four classes. If the defendant had authorised the mother to repeat the slanderous words to Galloway, the action could have been sustained . But there is no evidence of any such authority. Then again , if the defendant had intended that the words should be communicated to Galloway, that would have done . But there is no evidence of any sort or kind to warrant that suggestion. Again, if the repetition of these words had been the natural consequence of the defendant's uttering them, that would have been sufficient ; but that cannot be established here. Lastly, there is authority for this proposition, that if it could have been made out that there was a moral obligation on the mother to communicate the slander to her daughter, and on the daughter to communicate it to Galloway, the action would have been maintainable. But here the words were untrue, and the mother must have known that they were untrue, and there could not be any obligation either on the mother or the daughter to repeat them to Galloway..." (emphasis added) 126 The first circumstance to which Lopes LJ referred, that of authorisation, (that pleaded by the appellant in paragraph 4 of the amended statement of claim) is one of the circumstances to which Isaacs J was referring in Webb v Bloch (at 364) which would render both the original publisher and the person authorised to publish the original publication principals in that publication. As Isaacs J said, after copious reference to authority, "[t]he judgments show that all the defendant did was to authorize the publication of the libel, in law that he published it". 127 The other three circumstances of publication referred to in Speight v Gosnay liability for which may be sheeted home to the original publisher, are, in substance, where the original publisher foresaw or ought to have foreseen that "the natural and probable result of his act will be that his statement will be republished": Sims v Wran (at 320) per Hunt J. That proposition adopted Salmon J's explanation in Cutler v McPhail [1962] 2 QB 292 (at 298) of the circumstances in which a plaintiff may recover damages from the original publisher for the republication of defamatory material - in that case a letter to the editor of a magazine. Salmon J held that the plaintiff could achieve that end without suing on the defamatory publication as a separate tort, by claiming damages for the republication in the magazine as a component of the damages claim in respect of the original publication. In Salmon J's view, the jury would be entitled to award the plaintiff damages, not only for the publication of the letter to the editor, but also for its republication in the magazine if the jury found that the defendant "intended what he had stated to be repeated in the journal … [and/or] if the repetition of a libel is a natural and probable consequence of its publication [as] the plaintiff is entitled to all the damages that flow from the publication". This is the class of case described in Habib (at [125]) as a claim for "republication as damages". It is the appellant's contention that his claim in the Denoon proceedings, insofar as the campaign letter was concerned, was in that class. 128 Salmon J's words substantially accord with the second and third of the circumstances to which Lopes LJ adverted in Speight v Gosnay. They identify two matters a plaintiff wishing only to sue on an original publication, but also to recover damages for all republications flowing from that publication, must establish to make good that claim. I cannot, therefore, with respect agree with the primary judge's conclusion (at [30]) that a plaintiff who sues only on the original publication, relying on the republication as part of the damages claim rather than as a discrete cause of action, does not have to plead or establish the matters set out in Speight v Gosnay. As was explained in Habib (at [122] - [125]) some of those matters will be essential to establishing the causal nexus between the original publication and the republication necessary to establish the plaintiff's contention that "republication of that matter by a third party was the foreseeable consequence of its original publication and did not break the chain of causation so as to constitute a novus actus interveniens": see Slipper v British Broadcasting Corporation [1991] 1 QB 283 (at 296) per Stocker LJ; (at 300) per Bingham LJ; (at 301 - 303) per Slade LJ. 129 An original publisher will only be liable in the circumstances posited in the second and third Speight v Gosnay circumstances for the republication of the original sting whether in whole or in part: McManus v Beckham [2002] 4 All ER 497; [2002] 1 WLR 2982 (at [13], [34]) per Waller LJ (Clarke and Laws LLJ agreeing). Just as the liability of a republisher turns upon the context in which the republication occurred (John Fairfax Publications Pty Limited v Obeid (at [96])), so, too, may the original publisher's liability turn on the context of the republication. That was the reason I understand Nicholas J required the appellant to plead the campaign letter, in order to place the publication of Schedule A in context. Thus it is necessary, even in a "republication as damages" case, to plead the context of the republication as well as the meanings alleged to be conveyed by the republication to put the defendant on notice of the case the plaintiff will advance: see, for example, Hanrahan v Ainsworth. I also cannot, therefore, with respect agree with the primary judge's tentatively expressed doubt (at [47]) as to whether it was necessary for a plaintiff in such as case to plead the imputations said to arise from the republication.

Characterising the Denoon proceedings 130 With those observations in mind, I turn to the issue the appellant asserts is decisive of the appeal: the nature of his claim in the Denoon proceedings. In considering the characterisation of that claim, it is necessary to bear in mind that the effect of the entry of judgment in the Denoon proceedings, following acceptance of the offer of compromise, was that the appellant's cause of action against Mr Denoon, and any matters which were necessarily established as its legal foundation or as the justification for its conclusion, or were legally indispensable to the conclusion, merged in the judgment: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 (at 531 - 532) per Dixon J. 131 Blair v Curran applies in the case of a consent judgment which in my view is an apt description of a judgment entered after acceptance of an offer of compromise. In such a case the court closely examines all available evidence to establish the matters necessarily established as the legal foundation of the judgment: see Habib (at [186]); Baxter (at [55]). The only such evidence in this case is the pleading on which judgment was entered, the amended statement of claim. The documents which led to the consent judgment (the offer of compromise and associated correspondence) may have been relevant if the respondent had contended that on receipt of the $26,000 in the Denoon proceedings, the appellant had fully recouped any loss arising from the publication of the campaign letter: see Baxter (at [40], [46] - [47]) per Gleeson CJ and Callinan J; (at [57]) per Gummow and Hayne JJ; (at [89] - [92]) per Kirby J. 132 The amended statement of claim, in my view, identified at least two causes of action. The first (pars 1 - 3) was the publication by Mr Denoon to the respondent of the allegedly defamatory words in Schedule A (the "original publication"). 133 The pleader then turned to the publication in the campaign letter. It might be accepted that the pleader was assiduous to use the word "republish" and variations thereof in paragraphs 4 -7 of the amended statement of claim dealing with the campaign letter. However the use of those terms is not decisive of the issue. Characterising the case against Mr Denoon cannot turn on issues of semantics but must be determined by the substance of the case disclosed by the pleadings. 134 The allegation in paragraph 4 of the amended statement of claim that Mr Denoon authorised the respondent to republish the words was, in my view, a clear pleading that Mr Denoon "suggest[ed] illegal matter in order that [the respondent] may write or print it". It was, accordingly, an allegation that Mr Denoon was a principal with the respondent in the publication of the campaign letter, that they acted in concert so as to be joint tortfeasors in the publication of the campaign letter: Webb v Bloch (at 359, 364); see also Thompson v Australian Capital Television Pty Ltd (at 580 - 581) per Brennan CJ, Dawson and Toohey JJ; (at 581) per Gummow J (Gaudron J agreeing). 135 It should be noted that paragraph 4 put the case against Mr Denoon in the alternative: the first, based on authorisation, the second, in Speight v Gosnay terms, based on liability for republication as the natural consequence of the original publication. That, in my view, reinforces the proposition that the appellant was trying to plead his case against Mr Denoon as widely as possible. It may have been open to the primary judge to conclude that the alternative pleading in paragraph 4 presaged a republication as damages claim, pleaded as a fallback in the event the authorisation claim failed. However the conclusion that the appellant pleaded the case against Mr Denoon in part as principal in the publication of the campaign letter means Mr Hale's submission that the case in respect of the campaign letter was only put as a "republication as damages" case must be rejected. 136 I would add that the conclusion that both Mr Denoon and the respondent were identified as principals in the publication of the campaign letter was reinforced, as the primary judge concluded, by the fact that the appellant pleaded (paragraph 6) a third imputation in addition to the two pleaded in respect of the original publication case (paragraphs 1 - 3). Paragraph 6 had to be read with the allegation in paragraph 5 that the respondent had republished "the words in Schedule A as part of a letter dated September 2006 which he published to members of the Australian Jockey Club". The third imputation in paragraph 6 could only be understood as arising from the passage emphasised in the extract from the campaign letter set out earlier in these reasons (at [61] which did not form part of the materials identified as part of Schedule A. The appellant was clearly complaining that Mr Denoon's testimonial formed part of a joint publication, rendering him liable as principal for imputations arising from the entirety of the campaign letter. Mr Hale sought to avoid this conclusion by arguing the primary judge should not have had regard to the third imputation because it was untenable. In my view that argument should be rejected. 137 Although it was the two schedules which constituted the defamatory matter for the purposes of s 8 of the 2005 Act, the manner in which the appellant particularised his claim in the pleaded imputations in the amended statement of claim is also relevant to the question of what "was expressed, or necessarily involved, in the actual decision assented to": Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69 (at 75) per Street CJ and Roper CJ in Eq. 138 Accordingly, in my view, the effect of the consent judgment was that the appellant must be taken to have established, as against Mr Denoon, the fact that he published the two defamatory matters in Schedules A and B, the sting of the defamation being as set out in all pleaded imputations. Accordingly, the consent judgment necessarily decided in the appellant's favour, that the campaign letter conveyed the third imputation and that Mr Denoon had published that part of the campaign letter which supported that third imputation. As I have said, that imputation was not drawn from Schedule A, but from other parts of the campaign letter. It is not open to Mr Hale, therefore, to seek to exclude the third imputation from consideration in the characterisation exercise by asserting it was untenable. 139 Accordingly the primary judge did not err in concluding that the amended statement of claim in the Denoon proceedings pleaded a cause of action against Mr Denoon as a joint tortfeasor with the respondent in the publication of the campaign letter. The "damage" for the purposes of s 5(1) which was the subject of the Denoon proceedings was what the appellant suffered as the foreseeable consequence of that publication (as well as the single publication of Schedule A to the respondent), being the harm to his reputation which flowed from the publication of the defamatory matter. 140 The Smyth-Kirk proceedings also concerned publication of the campaign letter. The "damage" the subject of those proceedings was the same damage as that in respect of which the Denoon proceedings were brought: the harm to his reputation which flowed from the publication of the defamatory matter. 141 Mr Hale contended that the damage in the Smyth-Kirk proceedings was not the same as that in the Denoon proceedings because the aggravated damages claims in each case differed. That submission misunderstands the meaning of the word "damage" in s 5(1). As I have explained "damage" is not to be equated to "damages" in s 5(1). This submission also begs the question of the operation of s 5(1)(b) which as the Law Revision Committee intended, and as Brennan J found in XL Petroleum, avoids the possibility that a plaintiff might recover more in later actions against tortfeasors than in the first. The Law Revision Committee clearly contemplated that even though a jury might award a plaintiff more in the later action than the first, the judge could not enter judgment for any sum greater than that recovered in the first. 142 I agree with the respondent that the same result would have followed even if the Denoon proceedings had only relied on the publication of Schedule A to the respondent as the cause of action, and relied on the republication as damages case in respect of the publication of that Schedule in the campaign letter. Such a claim, as I have explained, would have enabled the appellant to recover damages from Mr Denoon for the republication of the sting of Schedule A in the campaign letter if that republication was a foreseeable consequence of that original publication. Thus the damage the appellant suffered to his or her reputation as a result of the publication of Schedule A in the campaign letter would have been suffered as the foreseeable consequence of the tort of publishing the original publication. Had Mr Denoon and the respondent not acted in concert in the publication of the campaign letter, as it is manifest they did, they would have been concurrent tortfeasors, having caused the same "damage": the foreseeable consequence of their respective torts, the damage to the appellant's reputation caused by the publication of the campaign letter.

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. **********

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.