Application to consolidate six proceedings into three
47The application to consolidate the six proceedings into three raises a more difficult question. The defendants submitted that the question raised by their application is whether it is legitimate for a plaintiff to commence a number of different proceedings in respect of the same article or articles "in order to avoid the damages cap". To identify the question in those terms begs the question (in the correct use of that expression, that is, it entails the logical fallacy of assuming the correctness of the conclusion contended for as a premise of the argument).
48The critical question is whether, by containing the amount of damages for non-economic loss that may be awarded "in defamation proceedings", the Act is to be understood to contain the amount of damages for non-economic loss that may be awarded in respect of multiple causes of action arising from the publication of the same defamatory matter.
49The term "matter" is defined in the Defamation Act as follows:
"matter" includes:
(a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical, and
(b) a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication, and
(c) a letter, note or other writing, and
(d) a picture, gesture or oral utterance, and
(e) any other thing by means of which something may be communicated to a person.
50The defendants acknowledge that the imposition in s 23 of the Act of a requirement for leave to commence further proceedings in relation to "the same or any other publication of the same or like matter" applies, in terms, only where the proposed further proceedings are brought against "the same defendant". They put two submissions in relation to that section.
51First, it was submitted that, at least in the case of a mass media defendant like Nationwide News, all those involved in the publication (journalists, editors, the corporate proprietor and so on) are to be regarded as "the same defendant" within the meaning of the section. I do not accept that submission. Whilst it would have made sense for Parliament so to provide, it is not what the Act says. To accept the submission would put a gloss on the words of the section.
52Secondly, the defendants submitted that s 23 does not purport to cover the field of potential abuses of process by the commencement of multiple proceedings. In that context, the defendants noted that the categories of abuse of process are not closed and have been described as being limited only by "human ingenuity": Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279 per French J (as his Honour then was).
53The defendants submitted that, although not expressly prohibited by s 23, it is an abuse of process for a plaintiff to maintain separate proceedings in respect of the same publication against, for example:
(a) the company which owns the masthead;
(b) the company which prints the masthead;
(c) the company which operates the websites;
(d) the journalists;
(e) the editor;
(f) the editor-in-chief; and
(g) the sub-editor who settled the final form of the article.
54It is not necessary for the purposes of the present application to determine whether that is correct as an unqualified statement of legal principle. Each alleged instance of abuse of process must be considered according to the individual circumstances of the case. It may nonetheless be accepted that there is a body of authority to support the position contended for on behalf of the defendants. The relevant authorities were considered by McColl JA in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [134], as follows:
In Haines (at 408), Hunt CJ at CL referred to Thomson as being in that class of cases "where multiple defamation proceedings based upon the same material have been brought against the same defendant where all could readily have been comprehended within the one action", an observation he repeated (with the agreement of Santow JA) in Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 (at [79]). His Honour, in my view, was referring to the "same defendant" as being those principally responsible for publishing of the same publication, as were those sued in Thomson. That was the sense in which Menhennitt J applied it in Meckiff v Simpson, to reject an argument that it was vexatious or oppressive for a plaintiff to commence defamation proceedings against the author and writer, the printer and publisher, and the publisher and distributor of a book in respect of publication in Victoria, as well as "in other States of the Commonwealth of Australia and in the United Kingdom". His Honour observed that, consistently with Thomson, if the plaintiff took proceedings in a number of States and the United Kingdom he might be confronted in other jurisdictions with the contention that it was an abuse of the process of the court for him not to have combined all his claims in one action. The Full Court (at 69) upheld his Honour's decision.
55McColl JA accepted that a line of authority (to which her Honour referred as the "complete remedy" line of authority) holds that "in certain circumstances of multiple publication of defamatory matter, a person defamed has a "complete remedy" in one proceeding and it is an abuse of process to divide the remedy" by bringing further proceedings (at [129]). Her Honour expressed the view (at [141]) that the "complete remedy" line of authority extends to the situation where the plaintiff seeks to sue the "same defendant" in the sense in which her Honour understood Hunt CJ at CL to have used that expression in Haines (explained in the passage from Habib set out above).
56Mr Smark SC, who argued the present application on behalf of the plaintiff, did not take issue with the proposition that, within each of the three sets of two proceedings, the defamatory publication relied upon was the same or like matter, with perhaps one qualification. The whole of the matter complained of in proceedings 118 appears within the matter complained of in proceedings 114 but the latter has additional material not reproduced in the former. One additional imputation (imputation (j)) is relied upon as arising from the matter complained of in proceedings 114.
57After seeking further submissions from the parties as to the significance of that difference, I accept that the two matters complained of are nonetheless the same or like matter. The position might be different if it were suggested that the additional material altered the sense of the balance but that is not the case. Accordingly, I am satisfied that it is appropriate to proceed on the basis that, in each set of two proceedings, the printed matter and the Internet matter are the same or like defamatory matter.
58Mr Smark submitted, however, that the Court should be careful in the application of supposedly well-settled principle when considering issues that involve the Internet. He noted in passing that, as a matter of pleading practice in this list, a newspaper article and an Internet publication are not treated as being merely different particularisations of the one publication. However, he acknowledged that that is a matter of pleading which may not reflect the substantive law.
59With perhaps more emphasis, Mr Smark submitted that there is a distinction between a printed publication and "publication" on the Internet, by reason of the continuing availability of material on the Internet, which he submitted should be seen as something of an archive. He noted the decision of the Court of Appeal in Harris v 718932 Pty Ltd [2003] NSWCA 38; (2003) 56 NSWLR 276, in which it was held that it is not an abuse of process to bring proceedings in respect of a second run of a book. Mr Smark submitted that there is every reason to see an Internet publication as including the successive publication (each time an article is downloaded), much in the nature of successive publications of a book.
60The plaintiff's adoption, in constituting six separate proceedings, of a distinction between publication in print and publication on the Internet must however be viewed in the context of all of the circumstances. In the present case the same company, Nationwide News Pty Ltd, publishes both versions of the newspaper, but the plaintiff has chosen not to sue that company for both - to do so would require leave under s 23. Upon analysis, the subtle qualities of publication on the Internet as opposed to publication in print identified by Mr Smark are no more pertinent (for the purpose of assessing damage for non-economic loss) than the distinction between readers of the printed newspaper in Kirribilli and readers in Minto.
61In light of Mr Smark's frank concession that the proceedings have been structured as they have "with an eye to the operation of the cap", it is clear that the corporate defendant has been deliberately omitted from those proceedings in which the plaintiff sues on the print versions of each article. It is equally clear that that is a choice which has been made to obviate the requirement to seek leave under s 23 and so as to permit the plaintiff to argue that the statutory maximum for non-economic loss is available in each of two proceedings (in each case).
62In my view, that course is calculated to defeat the "complete remedy" principle. Contrary to the plaintiff's submissions, I do not accept that that principle is confined to the circumstance where successive proceedings are brought against the same defendant. The remarks of McColl JA in Habib support the view that, at least at common law, successive actions against different defendants each jointly liable for the same or like matter (and who could each accordingly have been sued in the same proceedings) will be regarded as the division of a complete remedy.
63The more difficult question is to discern the impact of the Defamation Act 2005 on that principle. A clear object of the Act is to limit the amount of damages that can be recovered for non-economic loss (expressed also in the requirement of s 34 to ensure that there is "an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded"). Mr Smark submitted that it does not matter whether the cap is regarded as normative or jurisdictional, since in the case of multiple publications and indeed multiple proceedings the assessment of damages will ultimately be guided by a "totality principle" (presumably by analogy with the principle that applies when sentencing a person for multiple criminal offences).
64It is not difficult to imagine circumstances in which that might be a helpful analysis. However, I am concerned with the particular circumstances of the present case. In my view, the division of the plaintiff's causes of action into separate proceedings for print and Internet entails a measure of artificiality. I regard the deliberate exclusion of a party who would have been "the same defendant" from one of those proceedings as a circumvention of the plain object of the Defamation Act to contain the remedy for non-economic loss in defamation proceedings.
65It was an untested premise of the parties' submissions that I should not consolidate the proceedings unless persuaded that the course adopted by the plaintiff amounts to an abuse of process. That was not the approach taken by the Chief Justice of the Australian Capital Territory (in dissent) in the decision considered below. "Uncluttered" (as it is sometimes put) by authority, I would have held that the circumstances of the present case do fall within the "complete remedy" line of authority and that the Defamation Act, rather than replacing that line of authority, only reinforces it. On that basis, I would have been satisfied that the division of the plaintiff's remedy between, on the one hand, the corporate proprietor for the Internet publications and, on the other hand, all other Nationwide defendants for the printed publications does amount to an abuse of process.
66But, even if that is wrong, for the reasons explained below, I am persuaded that it is appropriate to consolidate the six proceedings into three. The two actions in each set of proceedings could have been joined in one. Further, for the reasons already stated, I do not consider that consolidation of each set of two will expose the plaintiff to any relevant prejudice: cf Buckley at [2].