Dank v Whittaker

2013/184586: K Smark SC (plaintiff) T Blackburn SC with L Barnett (first and second defendants)

2013/184595 K Smark SC (plaintiff) T Blackburn SC, L Barnett (defendant) Solicitors: 2013/157114 Cambridge Law (plaintiff) Ashurst Australia (first, fifth, sixth and seventh defendants) Kennedys (third defendant) Wotton & Kearney (fourth defendant)

2013/157118 Cambridge Law (plaintiff) Ashurst Australia (defendant)

2013/170487: Cambridge Law (plaintiff) Ashurst Australia (first and second defendants)

2013/170493: Cambridge Law (plaintiff) Ashurst Australia (defendant)

2013/184586 Cambridge Law (plaintiff) Ashurst Australia (first and second defendants)

2013/184595 Cambridge Law (plaintiff) Ashurst Australia (defendant) File Number(s): 2013/157114 2013/157118 2013/170487 2013/170493 2013/184586 2013/184595 Publication restriction: None

Judgment 1HER HONOUR: Stephen Dank has commenced six separate proceedings for defamation arising out of the publication of numerous articles in The Daily Telegraph concerning his alleged involvement in the suspected administration of performance-enhancing substances to footballers at the Cronulla-Sutherland District Rugby League Football Club. 2The six proceedings relate to articles that were either published in print or made available for downloading on the Internet on three separate dates. In each case (that is, in respect of each separate date) Mr Dank has commenced two proceedings, one in respect of the publication of the article in print and one in respect of the version made available on the newspaper's website. In each case, the proceedings relating to the on-line version are brought only against the corporate proprietor of the website, Nationwide News Pty Ltd. That company is also the proprietor of the printed newspaper but is not sued in any of the proceedings relating to the printed versions of the matters complained of. The proceedings relating to the printed versions are brought against various editors and journalists employed by Nationwide News, together with a number of third party commentators to whom quotes or opinions are attributed in the articles. 3It is convenient to refer to Nationwide News Pty Ltd and its employees as the Nationwide defendants. 4By notice of motion filed 22 July 2013, the Nationwide defendants seek an order pursuant to r 28.5 of the Uniform Civil Procedure Rules 2005 that the six proceedings be consolidated into one, or alternatively into three, and alternatively an order that all proceedings be tried at the same time. This judgment determines that application. 5None of the non-Nationwide defendants sought to be heard on the motion. It should be noted, however, that so far as the Court is aware Ms Rachel Givney, the third defendant in proceedings 2013/170487, has never been served with the originating process. If that is correct, the originating process against her is no longer valid for service and the proceedings against her may be liable to be dismissed: see rule 6.2(4) of the Uniform Civil Procedure Rules. 6Rule 28.5 provides: If several proceedings are pending in the court and it appears to the court: (a) that they involve a common question, or (b) that the rights to relief claimed in them are in respect of, or arise out of, the same transaction or series of transactions, or (c) that for some other reason it is desirable to make an order under this rule, the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them. 7The basis for the defendants' application is, in short, that it is desirable to make the order sought because the commencement and prosecution of multiple proceedings amounts to an abuse of the process of the court in that it is calculated to defeat the statutory "cap" on the amount of damages that can be recovered for non-economic loss in any single defamation proceedings. It was also submitted that the choice of defendants in each proceedings is calculated to defeat the requirement for leave under s 23 of the Defamation Act 2005. 8The hearing of the motion was deferred at the request of the parties to abide the publication of a decision of the Court of Appeal of the Supreme Court of the Australian Capital Territory, which was understood to raise the same legal point. That decision has now been published and is considered below.

Summary of the six proceedings - proceedings 114 and 118 9It is convenient to refer to the various proceedings by the last three digits of the court file number. The two proceedings commenced first in time were proceedings 114 and 118 (commenced by statements of claim each filed on 21 May 2013). The defamatory matter complained of in proceedings 114 in fact consists of six separate articles which the pleading treats as one. The defendants take no objection to that aspect of the pleading. The six articles were published in the printed edition of The Daily Telegraph on 26 April 2013 under the following headlines: (a) "Peptide 'link' to NRL star's death" (page 1); (b) "Cronulla player's death 'link' to peptides" (pages 2 and 3) (c) "Supplement link to Mannah's relapse" (pages 134 and 135); (d) "Increased levels of growth hormone 'dangerous' for cancer sufferers" (page 134); (e) "Ings believes document would not save players from bans" (page 135); (f) "Danger game - doctor warns of risks associated with untested supplements" (page 136). 10The defendants to those proceedings who are Nationwide defendants are the first, fifth, sixth and seventh defendants. The first defendant is Paul Whittaker, the Editor of The Daily Telegraph. The fifth, sixth and seventh defendants are Rebecca Wilson, James Hooper and Josh Massoud, each a journalist employed by Nationwide News. 11The 118 proceedings relate to two articles which are in substantially the same terms as those referred to in paragraphs (b) and (c) above except for the headlines. Those articles were made available on The Daily Telegraph website, also on 26 April 2013, under the following headlines: (a) "Peptides given to Cronulla Sharks players may have hastened former player Jon Mannah's death"; (b) "Provision of growth supplements to cancer sufferer would be 'indefensible': Peter Larkins". 12Those two articles are also treated as a single defamatory matter in the pleading and, again, no objection was taken to that course. The plaintiff relies upon the same imputations in respect of the alleged defamatory matter on the Internet as in respect of the alleged defamatory matter in print. However, the alleged defamatory matter in print includes material not made available on the Internet (of the six articles in proceedings 114, only two are sued on in proceedings 118). There is one additional imputation relied upon in proceedings 114 which is not pleaded in proceedings 118 (imputation (j)). 13The only defendant in proceedings 118 is Nationwide News Pty Ltd.

Proceedings 487 and 493 14The next two proceedings commenced by the plaintiff were proceedings 487 and 493. Those two proceedings were each commenced by statement of claim filed on 3 June 2013. They related to an article published prior to the commencement of the first two proceedings. The 487 proceedings relate to an article published in print in The Daily Telegraph newspaper on 10 March 2013 (a Sunday) under the headline "Axed doctor's daughter in stinging online defence". 15The defendants to proceedings 487 who are Nationwide defendants are the first and second defendants. The first defendant is Mick Carroll, the Editor of The Sunday Telegraph. The second defendant is Phil Rothfield, a journalist employed by Nationwide News. 16The 493 proceedings relate to an article which is in substantially the same terms as the article sued on in proceedings 487 except for the headline. That article was made available on The Daily Telegraph website, also on 10 March 2013, under the headline "Cronulla doctor David Givney's daughter in Facebook defence of sacking". 17The only defendant in the 493 proceedings is Nationwide News Pty Ltd.

Proceedings 586 and 595 18Finally, proceedings 586 and 595 were commenced by statements of claim each filed on 17 June 2013. The 586 proceedings relate to an article published in The Daily Telegraph on 4 June 2013 (the day after commencement of the second pair of proceedings) under the headline "Police look at Mannah death". 19The defendants to those proceedings are both Nationwide defendants. The first defendant is Paul Whittaker, the Editor of The Daily Telegraph. As already noted, Mr Whittaker is also a defendant to proceedings 114. The second defendant is Yoni Bashan, a journalist employed by Nationwide News. 20The 595 proceedings relate to an article in substantially the same terms as the article sued on in proceedings 586, except for the headline. That article was made available on The Daily Telegraph website on 4 June 2013 under the headline "NSW Police look at NRL star Jon Mannah's death following ASADA information". 21The only defendant in the 493 proceedings is Nationwide News Pty Ltd. 22The proceedings thus fall into three sets: the 114 and 118 proceedings commenced on 21 May 2013 following the publication on 26 April 2013 of allegedly defamatory matter consisting of six articles (two reproduced on-line); the 487 and 493 proceedings commenced on 3 June 2013 in respect of an article published on Sunday 10 March 2013 (identical in print and on-line apart from the headline) and the 586 and 595 proceedings commenced on 17 June 2013 following the publication of an article on 4 June 2013 (identical in print and on-line apart from the headline). In each set of two, the plaintiff has sued the corporate publisher in relation to the article on the Internet and the corporate publisher's employees (as well as third party commentators) in relation to the article as it appeared in print.

Multiple causes of action for defamation 23The publication of defamatory matter will often give rise to more than one cause of action. In the case of a publication in the mass media, there will almost invariably be several persons and entities jointly liable as publishers of the same defamatory matter (such as journalists, editors, the newspaper proprietor and the printer). A defamed person has a cause of action against each such person or entity. 24Strictly speaking, there is also a separate cause of action for each separate publication, that is, each occasion on which the defamatory matter is comprehended by an individual reader. Thus a defamatory article in a newspaper bought and read by 100,000 persons would give rise to 100,000 causes of action: McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513 at 519E - 520C per Asprey JA. 25There will often also be multiple instances of publication of the same matter in different forums. It is not uncommon to see the same article, perhaps with slight variation, in different editions of the newspaper, in different newspapers within the same corporate group or syndicate and in different forms, with a version in print which differs only slightly from a version on the Internet. 26The common law favours the resolution of multiple causes of action in single proceedings, at least where there are common parties or common issues of fact. In Dow Jones v Gutnick (2002) 210 CLR 575, the High Court said (at [71]): Clearly the common law favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings. The principles of res judicata (Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446) issue estoppel (Blair v Curran [1939] HCA 23; (1939) 62 CLR 464), and what has come to be known as Anshun estoppel (Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45; (1981) 147 CLR 589) all find their roots in that policy. Effect can be given to that policy by the application of well-established principles preventing vexation by separate suits (... in relation to defamation, see also Maple v David Syme & Co Limited [1975] 1 NSWLR 97 at 100 - 102; Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519 at 537; Meckiff v Simpson [1968[ VR 62 at 65; and [1968] VR 69; Thomson v Lambert [1938] 2DLR 545) or, after judgment, by application of the equally well-established principles about preclusion, including principles of Anshun estoppel. 27In the field of defamation at least, the common law preference for a single legal action is fortified by statute. The Defamation Act 2005 expressly contemplates that defamation proceedings may relate to more than one cause of action: see s 22(4) of the Act. The Act specifically addresses the prospect of multiple proceedings, in at least two ways. First, it is provided in s 8 that a person has "a single cause of action for defamation in relation to the publication of defamatory matter" even if more than one defamatory imputation is carried by the matter. The focus of that section on imputations is explained by the fact that the section reversed the position under the previous legislation, the Defamation Act 1974, s 9 of which provided that there was a cause of action in respect of each separate defamatory imputation. 28Secondly, s 23 of the Act provides that a person who has brought defamation proceedings for damages "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. 29That section is expressly directed to proceedings for damages. It would appear that a person seeking only injunctive relief is unconstrained in the number of proceedings that may be commenced. The requirement for leave is clearly directed to the vice of exposing "the same defendant" to multiple claims for monetary compensation. 30It may be accepted that the Act addresses the prospect of multiple proceedings specifically. The question is whether it purports to do so comprehensively. 31Leaving aside the requirement for leave under the statute, it has long been recognised that duplicate proceedings against the same defendant in respect of the same defamatory matter may amount to an abuse of process, since the effect is "to divide the remedy where there is a complete remedy in the Court in which the suit was first started": Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 at 99E and 102D per Begg J. The scope and significance of the "complete remedy" principle is considered below.

Cap on damages in proceedings for defamation 32The Defamation Act 2005 limits the damages that may be awarded for non-economic loss in defamation proceedings. Section 35 of the Act relevantly provides: (1) Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250,000 or any other amount adjusted in accordance with this section from time to time (the "maximum damages amount") that is applicable at the time damages are awarded. (2) A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages. 33The amount is adjusted annually by reference to average weekly total earnings over the preceding year: s 35(4). The adjusted amount is required to be published in the Government Gazette on or before 1 July each year. The current amount is $355,500. 34In terms, the cap provided for in subsection 35(1) applies to "proceedings", not to individual causes of action. If it is needed, support for that construction of the section may be found in this Court's decision in Davis v Nationwide News Pty Ltd [2008] NSWSC 693 at [9] per McClellan CJ at CL (as his Honour then was). In that case the highly-regarded Australian actor, Ms Judy Davis, commenced a single set of proceedings claiming damages in respect of two publications by the same defendant. The first was an article published in The Daily Telegraph on 23 February 2006. The second was a similar but not identical article published in The Sunday Mail in Queensland a few days later. It was argued on behalf of Ms Davis that the statutory cap was applicable to each cause of action, giving a combined cap (at that time) of $561,000. McClellan CJ at CL rejected that argument. His Honour said: Section 22(4) of the Act provides that proceedings for defamation may relate to more than one cause of action. Section 23 has the purpose of generally confining the plaintiff to a single "defamation proceeding" and provides that a plaintiff may only bring further defamation proceedings against the same defendant "in relation to the same or any other publication of the same or like matter", with the leave of the court. Both sections 34 and 35 refer to "the damages to be awarded in (any) defamation proceedings." In my opinion the consequence must be that the monetary maximum limits the damages which can be awarded in the proceedings, even if those proceedings involve multiple causes of action. 35I would respectfully agree with those remarks. 36Interestingly, subsection 35(2) creates an exception to the application of the cap which is expressed by reference to what may be ordered against "a defendant" (not by reference to what may be ordered "in defamation proceedings"). However, it would be inconsistent with subsection 35(1) to construe that provision as allowing the court to order multiple amounts exceeding the cap against multiple defendants severally. Reading the section as a whole, it seems rather that only one cap is allowed for each plaintiff in any single proceedings, even where multiple defendants are sued. In that provision at least, the term "a defendant" appears to comprehend a collection of jointly liable defendants. 37It may also be noted that, under s 38(1)(d) of the Act, evidence is admissible in mitigation of damages "that the plaintiff 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". That provision imposes a further control on the assessment of damages in the case of multiple publications of essentially the same defamatory matter. Conversely, it plainly contemplates the possibility of multiple proceedings, as does s 23 (albeit with a requirement for leave).

Permissibility of maintaining multiple proceedings in the present case 38The plaintiff acknowledges that, at least as to each of the three sets of two proceedings relating to allegedly defamatory matter published in print and made available on the Internet on the same date, his purpose in commencing two proceedings rather than one was "with an eye to the operation of the cap" (T36.1). He does not oppose an order that all six proceedings be tried at the same time but opposes consolidation "because it will have the effect of causing a single damages cap to apply to all six matters, potentially reducing his damages significantly." 39Accordingly, as was common ground, the application squarely raises the issue whether the commencement or maintenance of multiple proceedings in the circumstances of the present case offends the common law conception, reinforced by the statute, of a single remedy for the myriad wrongs of a defamatory publication. I consider that the application should be determined according to the determination of that issue.

Application to consolidate six proceedings into one 40In my view, the application to consolidate all six proceedings into a single proceeding must be rejected. On no view can the three discrete sets of allegedly defamatory matter be said to amount to the same defamatory matter. 41The defendants submit that the articles in each set of the three sets of proceedings, whilst not the same, concern generally the same subject matter, namely, alleged wrongdoing by the plaintiff in connection with his role as a sports scientist engaged by Cronulla-Sutherland District Rugby League Football Club. 42Mr Blackburn SC, who appeared with Ms Barnett for the Nationwide defendants, accepted that proceedings 487 and 493 deal with matters that seem to be "quite separate" from the others. He acknowledged that the articles sued on in the first and third sets of proceedings are also separate publications but submitted that a consideration of the imputations relied upon by the plaintiff reveals that they deal with very similar matters. It was submitted that those articles are closely aligned in that they both relate to an alleged link between the administration of peptides by the plaintiff to Jon Mannah and the acceleration of Mr Mannah's cancerous condition. 43Nothing in the principles and statutory provisions to which I have referred has persuaded me that a person defamed by different articles on different dates, who chooses to commence two separate proceedings in respect of each different article (and to pay the additional filing fee) must face the consolidation of those proceedings simply because he or she has been defamed twice in the same newspaper. In my view, subject to the application of s 23, the publication of a different defamatory article may properly be regarded as a different wrong giving rise to an entitlement to claim a separate amount of damages for non-economic loss. 44Support for that approach may be found in the decision of the Victorian Court of Appeal in Buckley v The Herald & Weekly Times Pty Ltd (2009) 24 VR 129 especially at [7]. 45Of course the court will in such circumstances be required, in assessing damages, to have regard to the provisions of s 38 of the Act which contemplates the mitigation of damages where other proceedings have been brought in relation to any other publication of matter having "the same meaning or effect". That provision provides some check on the multiplication or duplication of remedies, but it also tends to reinforce the proposition that separate proceedings may be brought for the publication of separate defamatory matter. 46For those reasons, the application to consolidate the six proceedings into one must be rejected, in my view.

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].

Is there binding authority that the application must be dismissed? 67The plaintiff submitted, however, that I am effectively bound by a decision of the Court of Appeal of the Supreme Court of the Australian Capital Territory to refuse the present application: Fairfax Media Publications Pty Ltd v Cummings; Fairfax Digital Australia & New Zealand Pty Ltd v Cummings [2013] ACTCA 37. In that case the Court, by majority, refused leave to appeal against a decision refusing to consolidate two proceedings for defamation brought by a horse trainer, Mr Anthony Cummings. 68An important difference between that case and the present case is that the Fairfax group of companies does operate its digital platforms and its printed newspapers through different corporations. It may nonetheless be accepted that the decision provides support for the proposition that, where two proceedings have been commenced in respect of like matter, unless the second proceedings fall foul of s 23 of the Defamation Act (the cognate provision under the relevant legislation in the ACT is s 133 of the Civil Law (Wrongs) Act 2002 (ACT)), the prosecution of both proceedings will not amount to an abuse of process. Mr Smark submitted that the decision stands as binding authority to that effect or, at the very least, that as a puisne judge I should not depart from it, since it is the decision of an intermediate appellate court on uniform legislation. 69Mr Blackburn submitted on behalf of the defendants that I am not bound to follow the decision in Cummings, for two reasons. First, the decision determined an application for leave to appeal to which the principles in House v The King (1936) 55 CLR 499 applied. The conclusion that, on a proper application of principle, it was open to the primary judge in that case to refuse the consolidation application does not mandate the refusal of the present application on a proper application of the same principles. Cummings stands as authority for no more than the proposition that, in the different circumstances of that case, the primary judge did not act on a wrong principle. That is plainly right, in my view. 70Secondly, Mr Blackburn submitted that, when dealing with an application for a remedy based on an alleged abuse of process, the authorities are clear that the categories of abuse are not closed and that each case must be considered according to its own circumstances. That is also plainly right, in my view. As already noted, however, at least part of the Court's reasoning in Cummings appeared to assume the correctness of the binary analysis that a second defamation action in respect of the same or like defamatory matter either requires leave under s 23 or is not an abuse of process. The primary judge had said: The defendants argue that despite the plaintiffs following s 133 to the letter, and not suing on the same articles and against the same defendants, the proceeding should be struck out as an abuse of process. However, the court considers that the legislature has explicitly set out the circumstances where a plaintiff cannot institute more than one defamation proceeding in s 133 of the Act. The Court considers the defendants' proposal would extend the operation of s 133 of the Act beyond the intention of the legislature. 71Katzmann J expressly held (at [71]) that, in so holding, the primary judge had not acted upon a wrong principle. Burns J agreed with Katzmann J (at [47]). 72Higgins CJ wrote a dissenting judgment. His Honour noted that the plaintiffs had not disputed that it would be an abuse of process to sue separately, for example, both the proprietor and the editor of the same publication, citing The Age Corporation Ltd v Beran [2005] NSWCA 289 at [49] (Higgins CJ at [24]). 73His Honour expressed the view, with which I would respectfully agree, that the term "the same defendant" does not embrace "different persons who, even in concert, publish the same or substantively the same matter" (at [28]). His Honour said that leave was thus not required to bring the two sets of proceedings and, indeed, that separate proceedings could have been commenced against each publisher of the defamatory matter. 74Higgins CJ held, however, that that conclusion did not dispose of the matter. His Honour concluded that the commencement of separate actions was not in itself an abuse of process but that it would "clearly be an abuse of process" to have them heard and determined separately, since the consequence would be to double the maximum amount recoverable for non-economic loss. His Honour concluded (at [44]) that, "where a plaintiff sues separately several defendants who, in combination, have published the same or substantially the same defamatory matter, the cap should apply". 75I would respectively agree with the dissenting conclusion reached by the Chief Justice of the Australian Capital Territory. After anxious deliberation, I have concluded that I am not bound to reject the present application on the basis of the conclusion reached by the majority. Although the majority endorsed the binary analysis of the legislation applied by the primary judge, ultimately the decision was one refusing leave to appeal. Further, as already noted, the present case has the important different feature that the same corporate defendant publishes both the print and digital versions of the newspaper and was deliberately excluded from three of the six proceedings to defeat the application of s 23 and the statutory cap.

Conclusion 76For those reasons, I consider that the six proceedings should be consolidated into three, as sought by the Nationwide defendants. 77The defendants sought an order in the alternative that the proceedings be tried together. The plaintiff did not oppose an order in those terms. However, having regard to the fact that some of the defendants to some of the proceedings are not Nationwide defendants (and notwithstanding the fact that those defendants chose not to be heard on the present application) I consider it preferable to defer determining that issue at this stage. The concerns raised by the Nationwide defendants can be met in the meantime if the proceedings continue to be case managed together, as they have been to date. 78I order that, pursuant to rule 28.5, proceedings 2013/157114 be consolidated with proceedings 2013/157118; proceedings 2013/170487 be consolidated with proceedings 2013/170493 and proceedings 2013/184586 be consolidated with proceedings 2013/184595.

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