Fairfax Media Publications Pty Limited & Ors v Cummings; Fairfax Digital Australia and New Zealand Pty Limited & Anor v Cummings & Anor [2013] ACTCA 37

Fairfax Media Publications Pty Limited & Ors v Cummings; Fairfax Digital Australia and New Zealand Pty Limited & Anor v Cummings & Anor [2013] ACTCA 37 - ACTCA 2013 case summary — Zoe

[157]

Anthony Cummings is a trainer of thoroughbred racehorses. He is also relevantly the plaintiff in two defamation proceedings (SC 411 of 2010 and SC 412 of 2010). In the first proceeding Mr Cummings, together with Anthony Cummings Thoroughbreds Pty Ltd, sues Fairfax Digital Australia and New Zealand Pty Ltd ("Fairfax Digital") and The Age Company Ltd ("The Age"). In the second, Mr Cummings alone sues Fairfax Media Publications Pty Ltd ("Fairfax Media"), Kate Lahey (a journalist alleged to be its employee and/or agent) and Fairfax Printers Pty Ltd ("Fairfax Printers"). The proceedings were commenced on the same day and were presumably filed at the same time.
It is common ground that, with the exception of Fairfax Printers, all the defendant companies are wholly-owned subsidiaries of Fairfax Media Limited. Fairfax Digital runs the on-line business, Fairfax Media publishes the print version of The Sydney Morning Herald ("Herald") and The Age Company Ltd publishes the print versions of The Age newspaper. Fairfax Printers is the printer of the posters used to advertise the Herald.
The proceedings are in their infancy. The statements of claim were filed on 16 June 2010. Nearly six months later - on 2 December 2010 - the defendants filed notices of intention to respond and with them applications to have the two proceedings consolidated. The applications were listed for hearing on 16 September 2011, but after a late amendment seeking additional orders that various imputations in the statements of claim be struck out, the matter was adjourned part-heard until 4 October 2011. On 18 November 2011 the primary judge dismissed the applications in their entirety. The defendants then applied for leave to appeal in respect of both matters: the refusal to order consolidation and the refusal to strike out the imputations. Those applications were heard by Refshauge ACJ who, on 24 August 2012, dismissed the application for leave to appeal against the primary judge's refusal to strike out the challenged imputations and referred to this Court the applications for leave to appeal from the refusal to make a consolidation order.
The substantive issue in these applications is whether the primary judge erred in concluding that the maintenance of the two proceedings was not an abuse of process, more specifically, as it is put in the affidavits filed in support of the leave applications:

[178]

The primary judge did not therefore overlook the wider point the applicants were making. He dealt with it and he gave reasons for his decision. Those reasons were admittedly brief. They may not have dealt with all the nuances of the applicants' arguments. The answer was obviously not the one the applicants sought. The applicants mounted a strong case for a consolidation order. But, as I indicated earlier, the question on any appeal is not whether the appellate court would have made a consolidation order; it is whether in declining to do so his Honour erred in the exercise of his discretion. I am not satisfied that he did. In particular, I am not persuaded that his Honour acted upon a wrong principle, as the applicants contend.
In any event, the conduct of the respondents does not fall within any of the recognised categories of abuse of process. There was no suggestion that one or other of the claims is frivolous or vexatious, doomed to fail, had no reasonable prospect of success or was brought for an ulterior purpose. There is no question about the suitability of the forum. This is not a case where the respondents are seeking to re-litigate an action which, whether in form or in substance, has already been decided in earlier proceedings.
The applicants drew attention to the exhortation of the Supreme Court of Canada in Lambert v Thomson [1938] SCR 253 ("Lambert") at [47] that "[t]he respondents should not be permitted to go on suing one person after another ad infinitum where a complete remedy was available in one action". Yet this remark was made in an altogether different context. In Lambert the respondents had recovered damages for the same defamatory publication in more than a dozen actions brought against distributors and vendors in one state. They then tried to recover damages for the same publication in another state on the basis of the location of the managing editor and publisher of the newspaper in which the defamatory articles appeared. Judgment having been obtained against the distributors and vendors in Manitoba, the court held that no action would then lie against the editor and publisher in Ontario for the same publication based upon the mere fact of publication to the distributors in Manitoba. That was a very different case from this one.
In fact, as the applicants acknowledged, none of the authorities upon which they relied is on all fours with the present case. Those authorities concerned applications to stay or strike out proceedings as an abuse of process where there had been previous finalised proceedings against the same or related defendants. Here, there are no concluded proceedings against any of the applicants arising out of the alleged defamation of the respondents. And the applicants do not want the court to strike out or stay either proceeding as an abuse of process. They merely want the proceedings to be consolidated in order to escape the possibility of two awards of damages for non-economic loss.
It is true that the doctrine of abuse of process cannot be confined by closed categories (Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 at [1], [9]); "the possible varieties ... are only limited by human ingenuity" (Sea Culture International Pty Limited v Scoles [1991] FCA 523; (1991) 32 FCR 275 at 279). A superior court has inherent jurisdiction to stay any proceedings as an abuse of process where "the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness": Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 ("Walton v Gardiner") at 392-393. I fail to see, however, why the conduct of the respondents in the present case meets this description.
As the respondents submitted, it is a serious matter to find that a party has abused the processes of the court. The power to permanently stay proceedings on that basis should be exercised with caution (Moore v Inglis (1976) 9 ALR 509 at 516, appeal dismissed in Inglis v Moore (1976) 51 ALJR 151) and may only be exercised in "an exceptional or extreme case" (Walton v Gardiner at 392 per Mason CJ, Deane and Dawson JJ). This is not such a case.
The applicants' argument was that the principle or policy which underlies the prohibition in s 133 would make it an abuse of process for a plaintiff to maintain separate proceedings in respect of the same or substantially the same publication against defendants, "who though in strictness theoretically separate, are members or wholly owned members in the same publishing group". They contended that it is an abuse of process if the respondents are allowed "to divide Fairfax up into defendants ... in order to maintain a number of different actions in respect of the same article published in separate Fairfax publications, against a number of defendants who are different for legal purposes but all from or related to the same publisher". They raise the possibility of inconsistent findings in the two proceedings.
I have real difficulty with this submission.
First, it was not the respondents who divided up Fairfax. If a business chooses to establish different corporate bodies for particular, albeit legitimate, reasons, then that will have consequences. Doubtless there are tax and other benefits to be derived from this. There may, however, also be detriments. At root, though, the defendants are all different legal personalities. To hold that it is an abuse of process to sue several subsidiary companies in different proceedings where there is no evidence that they acted in concert and merely because they had a common holding company "would be not just to lift the corporate veil but to rend it" (cf. Australian Consolidated Press Ltd v Bond (1984) 56 ACTR 14 at 36 per Kelly J).
Secondly, the two proceedings are not concerned with the same matters. Certainly the subject is the same and the imputations similar, if not identical. But there are some not unimportant differences. In SC 412 Mr Cummings also sued on the Herald poster and the applicants concede that he is entitled to sue in separate proceedings for any defamation it may convey. Furthermore, SC 412 is concerned with the original publication, SC 411 with republications. I shall say something more about this aspect of the proceedings later in these reasons.
Thirdly, the burden on the applicants is largely overcome by the order the primary judge made that the proceedings be heard together. This order ensures that there is no prospect of inconsistent verdicts and keeps costs to a minimum. The rules contemplate that a consolidation order is only one way to manage multiple proceedings with common or related features.
The applicants also submitted that it would be an abuse of process to sue joint tortfeasors in separate proceedings and sought to bolster their argument with the contention that the journalist was a joint tortfeasor with the publishers. The argument does not appear to have been put to the primary judge and is unpersuasive.
Joint tortfeasors are persons who "agree on common action, in the course of, and to further which, one of them commits a tort" (The Koursk [1924] P 140 at 155 per Scrutton LJ). 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" (The Koursk at 159-160 per Sargant LJ). Here, the respondents do not allege that the applicants in one matter acted in concert with those in the other and there is no evidence that would permit that inference to be drawn.
Principal and agent may be joint tortfeasors where the agent commits a tort on behalf of the principal, so, too, employer and employee where the employee commits a tort in the course of employment (Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574 ("Thompson v ACTV") at 580 per Brennan CJ, Dawson and Toohey J). Thus, a journalist, publisher, printer and distributor are joint tortfeasors in respect of the same defamatory publication (Thompson v ACTV at 581). I therefore accept that Ms Lahey is a joint tortfeasor with Fairfax Media, but they are sued in the one proceeding. Ms Lahey would also be a joint tortfeasor with The Age Company Ltd, as she is the author of the content (though not the headline), but she is not sued over The Age publication. Nor is she sued over the digital publications which also carry her by-line.
Moreover, unless the damage is the same, none of the parties sued in the first proceeding could be a joint tortfeasor with the parties sued in the second (see, for example, Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635. Although there may be some overlap, in all likelihood the audiences for the various publications would be different. That means that the damage in each case would not be the same (Harris v 718932 Pty Ltd [2003] NSWCA 38; (2003) 56 NSWLR 276 ("Harris") at 280; Dingle v Associated Newspapers Ltd [1961] 2 QB 162). The two proceedings are not concerned with the same torts. The defendants in each matter are successive, not joint, tortfeasors. The applicants did not submit that it would be an abuse of process to sue successive tortfeasors in two proceedings and it is difficult to see how such an argument could succeed.
As Handley JA explained in Harris at 281 (Stein and Santow JJA agreeing at 282):

[183]

In Cameron three sets of proceedings were brought against the same defendant arising out of the same motor vehicle accident. In one Mrs Cameron sued on her own account for damages resulting from injuries she had sustained in the accident. In another she sued as executrix of the estate of her late husband who had been killed in the accident. In the third another plaintiff sued for damages for injuries she had sustained in the accident. There were obviously common witnesses and the issues of fact and law in relation to liability in each case were identical. But the court refused to make a consolidation order because of a reasonable apprehension that the trial of the three actions before the same jury could have a depressing effect on the damages each party might hope to receive.
Consolidation orders should be made "very rarely" and no such order should be made if it is likely to expose a plaintiff to a substantial risk of real prejudice: Buckley v The Herald & Weekly Times Pty Ltd [2009] VSCA 118; (2009) 24 VR 129 ("Buckley") at [2] per Nettle JA, Ashley and Weinberg JJA agreeing.
Buckley was also a defamation suit. Mr Buckley sued the owner and publisher of the newspaper and a journalist employed by it. The proceeding related to four articles written by the journalist and published in the newspaper and on the newspaper's website on two days in December 2007. The proceeding was issued the same month. Nine months later the plaintiff issued a second proceeding against the same defendants arising out of the publication of another article. The defendants applied for a stay of the second proceeding and, in the alternative, an order that the two proceedings be consolidated.
The basis of the stay application was that the second proceeding was concerned with the publication of "like matter" to the articles the subject of the first proceeding and, the plaintiff not having sought leave, was barred from bringing the second proceeding by s 23 of the Defamation Act 2005 (Vic.) ("the Victorian Act"). Section 23 is the equivalent of s 133 of the Wrongs Act. At first instance Kaye J considered that the subject matter of the two proceedings was not the same, or "alike", so that s 23 did not apply and rejected the stay application. But he made an order for consolidation: Buckley v The Herald & Weekly Times Limited and another (No. 3) [2009] VSC 59. He said (at [16]) that there were a number of factors that militated in favour of such an order:

At a glance

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Judgment (197 paragraphs)

Fairfax Media Publications Pty Limited & Ors v Cummings; Fairfax Digital Australia and New Zealand Pty Limited & Anor v Cummings & Anor [2013] ACTCA 37 (11 October 2013)

Legislation Cited (7)

Cases Cited (15)