11 Mr Evatt refuted that contention. He submitted that the only task for the jury is to decide whether the matter complained of "was published" by the defendant. Mr Evatt submitted that it has always been an issue for the Court to determine the extent of publication as a matter going to damages. He stated that the inter-state publications pleaded in the present case are relied upon only as to that issue (rather than as discrete causes of action).
12 In order to analyse those contentions, it is necessary to consider what is comprehended in the notion of the so-called extent of publication. To say that extent of publication is a matter that goes to damages is a convenient but incomplete, and ultimately inaccurate, statement of principle. Strictly speaking, for the reasons explained in Gutnick, publication of defamatory matter to a large audience may give rise to multiple separate causes of action but, so long as each arises within the same territorial jurisdiction, it is expedient to deal with questions of defences and damages as though there were a single, far-reaching publication (the proliferation of causes of action was controlled under the 1974 Act by the power in s 9(5) of that Act to take a single verdict in respect of all causes of action relied upon; see also s 8 of the Defamation Act 2005).
13 Where, however, a plaintiff seeks to rely upon publication extending beyond the territorial border of the jurisdiction in which the claim is brought, what is identified is in truth a discrete tort (or series of torts) committed outside that jurisdiction. The term "extent of publication" tends to obscure that fact.
14 Mr McHugh accepted, as submitted by Mr Evatt, that for many years in this State, publication outside the State was treated as being capable of going only to damages rather than as a separate cause of action. Thus, in Toomey v Mirror Newspapers Limited (1985) 1 NSWLR 173 Hunt J said (at 184F):
"In my view, the common law permits a plaintiff who has pleaded a single cause of action against a newspaper defendant to recover as ordinary compensatory damages for the injury to his reputation caused by the entire issue of that newspaper published by the defendant, be it within the State in which the action is brought or elsewhere."
15 Mr McHugh submitted, correctly in my view, that since the decision of the High Court in John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2002) 203 CLR 503, that can no longer be regarded as a permissible approach. The correctness of the principle stated by Hunt J in Toomey (set out above) was considered by Gummow J in David Syme & Co Limited v Grey (1992) 38 FCR 303 at 322-327. His Honour concluded (at 327.6):
"Alternatively, [the decision in Toomey ] may be understood, as the respondent would have it, as authority for the courts of the forum to recognise and enforce extraterritorial rights arising from the commission of civil wrongs outside the jurisdiction (something to which the rule in Phillips v Eyre is directed) by awarding damages for harm to reputation sustained by publication elsewhere, regardless of whether that injury was wrongful there. If that be the correct reading of it, then, in my view, the decision should not be followed."
16 As observed by Mr McHugh, the reasoning in the joint judgment in Pfeiffer implicitly approves that as a correct statement of principle. Pfeiffer holds that, in respect of a tort alleged to have been committed in a State or Territory other than that in which proceedings are brought, the law to be applied by the Court hearing the claim governing all questions of substance is the law in which the tort was committed: at [120].
17 It follows, in my view, that in respect of a publication outside New South Wales, this Court cannot award damages for harm to reputation "regardless of whether that injury was wrongful there". The defendant must have an opportunity to defend the claim in accordance with the law of that jurisdiction, which includes not only the common law of Australia but also any applicable legislation of the State or Territory concerned.
18 Accordingly, I do not think that it is open to the plaintiff to rely on publication outside New South Wales as going only to damages. Further, I accept, as submitted by Mr McHugh, that to the extent that any extra-territorial publication was ever sought to be relied upon as a separate cause of action, that ship has sailed (to adopt Mr McHugh's expression), since no question as to publication was left to the jury.
19 For those reasons, I ruled that the defendant should not be required to produce documents in response to the notice to produce dated 3 February 2010 to the extent that it seeks production of documents relating to publication of the matter complained of outside the State of New South Wales.
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