APPEAL AND NEW TRIAL - PRACTICE AND PROCEDURE - defamation - refusal to consolidate proceedings - application for leave to appeal - whether substantial injustice would result if leave refused and first instance decision wrong - where no issue about maintenance of separate proceeding with respect to one claim - where applicants can rely in mitigation of damages on respondents bringing separate proceedings:

s 139I(1)(d) Civil Law (Wrongs) Act 2002 (ACT) - where respondents' success and damages undecided - where if refusal to consolidate affects final decision, right to appeal remains

Civil Law (Wrongs) Act 2002 (ACT) ss 118(2), 120, 133, 139F, 139I(1)(d), Ch 9

Defamation Act 1974 (NSW), s 9(2)

Defamation Act 2005 (NSW), s 35(1)

Defamation Act 2005 (Vic.), ss 23, 35

ACT Engineering Pty Ltd v Cuckow (1973) 1 ACTR 93

Adam P Brown Male Fashions Proprietary Limited v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170

Age Corporation Ltd v Beran [2005] NSWCA 289

Australian Consolidated Press Ltd v Bond (1984) 56 ACTR 14

Barber v Pigden [1937] 1 KB 664

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256

Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635

Buckley v The Herald & Weekly Times Limited and another (No. 3) [2009] VSC 59

Buckley v The Herald & Weekly Times Pty Ltd [2009] VSCA 118; (2009) 24 VR 129

Cameron v McBain [1948] VicLawRp 41; [1948] VLR 245

Carey v ABC [2010] NSWSC 709

Costello & Abbott v Random House Australia [1999] ACTSC 13; (1999) 137 ACTR 1

Davis v Nationwide News Pty Ltd [2008] NSWSC 693

Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397

Dingle v Associated Newspapers Ltd [1961] 2 QB 162

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Guss v Johnstone [2000] FCA 1455

Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231

Harmer v Oracle Corporation Australia Pty Ltd [2013] FCAFC 63

Harris v 718932 Pty Ltd [2003] NSWCA 38; (2003) 56 NSWLR 276

House v The King [1936] HCA 40; (1936) 55 CLR 499

Inglis v Moore (1976) 51 ALJR 151

In re the Will of F B Gilbert (dec) [1948] NSWStRp 16; (1946) 48 SR (NSW) 318

Lambert v Thomson [1938] SCR 253

Maple v David Syme & Co Ltd [1975] 1 NSWLR 97

Moore v Inglis (1976) 9 ALR 509

PNJ v R [2009] HCA 6; (2009) 252 ALR 612

Sea Culture International Pty Limited v Scoles [1991] FCA 523; (1991) 32 FCR 275

The Daniels Corporation International Pty Ltd and Another v Australian Compensation and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543

The Koursk [1924] P 140

Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574

Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Court of Appeal of the Australian Capital Territory

IN THE SUPREME COURT OF THE ) No. ACTCA 53 - 2011

AUSTRALIAN CAPITAL TERRITORY ) No. SC 411 of 2010

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: FAIRFAX MEDIA PUBLICATIONS PTY LIMITED (ACN 003 357 720)

BETWEEN: FAIRFAX DIGITAL AUSTRALIA AND NEW ZEALAND PTY LTD (ACN 087 887 456)

ANTHONY CUMMINGS THOROUGHBREDS PTY LTD (ACN 116 873 271)

1. The applications for leave to appeal be dismissed with costs.

IN THE SUPREME COURT OF THE ) No. ACTCA 53 - 2011

AUSTRALIAN CAPITAL TERRITORY ) No. SC 411 of 2010

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: FAIRFAX MEDIA PUBLICATIONS PTY LIMITED (ACN 003 357 720)

BETWEEN: FAIRFAX DIGITAL AUSTRALIA AND NEW ZEALAND PTY LTD (ACN 087 887 456)

ANTHONY CUMMINGS THOROUGHBREDS PTY LTD (ACN 116 873 271)

1. This is an application for leave to appeal from a decision of Refshauge ACJ handed down on 24 August 2012.

2. That decision denied leave to appeal against a refusal by Cowdroy J, an additional Judge of this Court, to strike out certain imputations alleged to arise from certain published material complained of as defamatory. That issue no longer in controversy.

3. There was also an application before Refshauge ACJ for leave to appeal from a further decision of Cowdroy J refusing to consolidate proceedings in two actions namely, Anthony Cummings and Anthony Cummings Thoroughbreds Pty Limited v Fairfax Digital Australia and New Zealand Pty Ltd and The Age Company Ltd (SC 411 of 2010) and Anthony Cummings v Fairfax Media Publications Pty Ltd and Kate Lahey and Fairfax Printers Pty Ltd (SC 412 of 2010). That matter has been referred to this court by Refshauge ACJ.

4. Those proceedings are brought by Mr Cummings and a company he controls and represents, in respect of a story, repeated in various publications, which comprises the matter complained of. The matter complained of was essentially the same in all platforms though there was some difference in the range of imputations allegedly conveyed. For example a poster referred starkly to "cruelty claim" against the plaintiff, Anthony Cummings, although the reference to the name "Cummings" would also have embraced the plaintiff's company.

5. There were two actions commenced by the plaintiff. In the first action, SC 411 of 2010 the plaintiffs are "Anthony Cummings" and "Anthony Cummings Thoroughbreds Pty Limited". The defendants are "Fairfax Digital Australia and New Zealand Pty Ltd" and "The Age Company Ltd". The first defendant, as the name implies, owns and operates various digital platforms ie: websites under the mastheads of "The Age", "Sydney Morning Herald" and "Brisbane Times". The second defendant is the publisher of the print newspaper, "The Age".

6. The second action, SC412 of 2010, is between "Anthony Cummings" as sole plaintiff and "Fairfax Media Publications Pty Ltd", "Kate Lahey" and "Fairfax Printers Pty Ltd" as defendants. The first defendant, it is conceded, is the holding company for all Fairfax interests save for "Fairfax Printers Pty Ltd". Those interests include the "Sydney Morning Herald" and "The Age" newspapers. Ms Kate Lahey is a journalist then employed by Fairfax Media who was the author of the substantive articles appearing in print and electronic media. There are some differences in the substantive publications which are set out in Annexure A to the reasons published by Cowdroy J (see par 27 infra).

7. The defendants in both proceedings, by applications dated 2 September 2011, sought an order that the two sets of proceedings be consolidated.

8. Cowdroy J delivered judgment on 18 November 2011 and rejected the application for consolidation.

9. His Honour noted that the Court did possess the power to order consolidation. That power is recognised in r 270 of the Court Procedure Rules 2006 (ACT):

(1) This rule applies if, in relation to 2 or more proceedings, it appears to the court that -

• (a) a common issue of law or fact arises; or
• (b) the relief sought in each of the proceedings is in relation to, or arises out of, the same transaction or event or series of transactions or events; or
• (c) a decision in a proceeding will decide or affect the other proceeding or proceedings; or
• (d) it is otherwise desirable to make an order under this rule.

(2) The court may order that -

• (a) the proceedings be consolidated; or
• (b) the proceedings be heard together or in a particular sequence; or
• (c) any of the proceedings be stayed until any other of the proceedings have been decided.

Note Consolidation results in the proceedings becoming a single proceeding and, for example, only 1 judgment is given in the consolidated proceeding.

(3) The court may make an order under this rule on application by a party to any of the proceedings or on its own initiative.

Note 1 Pt 6.2 (Applications in proceedings) applies to an application for an order or direction under this rule.

Note 2 Rule 6901 (Orders may be made on conditions) provides that the court may make an order under these rules on any conditions it considers appropriate.

(4) If the court orders that proceedings be consolidated or heard together or in a particular sequence, it may give the directions it considers appropriate for the conduct of the proceeding or proceedings.

(5) Before or during the hearing of a consolidated hearing or of hearings ordered to be heard together or in a particular sequence, the court may order that the proceedings be separated or heard in another sequence.

10. There was no doubt that the two proceedings would be most conveniently disposed of by being heard together. Only one set of costs would be incurred. The witnesses would need to attend to give evidence only once. The risk of inconsistent verdicts would be avoided. There was no opposition to that course from the plaintiffs. The reason that it matters which order is made depends on whether the statutory limit on damages contained in s 139F Civil Law (Wrongs) Act 2002 (ACT) ('the Act') applies so as to limit the damages for non-economic loss that may be awarded in defamation proceedings or, even if it had no direct application, whether a consolidation order should be made to avoid what was said to be an artificial circumvention of that statutory limit. The limit thus referred to arises from the provisions of ss 120, and 139F of the Act.

Single cause of action for multiple defamatory imputations in some matters.

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 1 defamatory imputation about the person is carried by the matter.

12. That provision makes it clear that the cause of action for defamation against a publisher of allegedly defamatory matter is constituted by the matter that conveys a defamatory meaning or meanings and not the meanings themselves, as was the case under the Defamation Act 1974 (NSW), s 9(2) whereby each defamatory imputation was deemed to constitute a separate cause of action. Repetition of the original libel is, at common law, not necessarily a separate or further cause of action against the original publisher (cf. Barber v Pigden [1937] 1 KB 664, 675). Nevertheless, under the Act, a separate cause of action may be brought against an original publisher, for example, if there is a post-judgment repetition of the defamatory matter by that publisher and leave might well be granted for that further action to be commenced, albeit it would complain of the publication of the same defamatory matter (see s 133 of the Act).

13. There is no statutory limit on proceedings against multiple publishers of the same matter.

14. The issue in this appeal is raised by s 139F of the Act.

139F Damages for non-economic loss limited

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.

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.

15. The legislative intent is, clearly enough, to limit the number of proceedings which may be commenced in respect to the same defamatory matter, and to limit the general damages in respect of the same to the "maximum damages amount". What is a "proceeding" is not defined, but it is a clear reference to those plaintiffs and defendants sued in and by the same originating process or who are added thereto as parties. That addition may occur by way of a consolidation order.

16. Some guidance may also be found in the now superseded provisions of the Defamation (Amendment) Act 1909 (NSW) which became law in the Australian Capital Territory on its formation on 1 January 1911.

It shall be competent for the court or a judge, upon an application by or on behalf of two or more defendants in actions in respect to the same, or substantially the same libel brought by one and the same person, to make an order for the consolidation of such actions, so that they shall be tried together; and after such order has been made, and before the trial of the said actions, the defendants in any new actions instituted in respect to the same, or substantially the same, libel may be joined in a common action upon a joint application being made by such new defendants and the defendants in the actions already consolidated.

In a consolidated action under this section, the jury shall assess the whole amount of the damages (if any) in one sum, but a separate verdict shall be taken for or against each defendant in the same way as if the actions consolidated had been tried separately; and if the jury find a verdict against the defendant or defendants in more than one of the actions so consolidated, they shall proceed to apportion the amount of damages which they have so found between and against the said last-mentioned defendants; and the judge at the trial, if the plaintiff is entitled to the costs of the action, shall make such order as he may deem just for the apportionment of such costs between and against such defendants.

18. It is apparent that the legislature intended those principles to be applied under Ch 9 of the Act. The question is whether that limitation is avoided by a plaintiff choosing to sue in separate proceedings each of the publishers of the defamatory matter. Here, the matter clearly starts with Ms Lahey as the author. The matter complained of has then been disseminated in substantially the same form in "The Age" and the "Sydney Morning Herald", the electronic platforms for those papers and the "Brisbane Times", an electronic publication.

19. The publications, though The Age and The Sydney Morning Herald texts differ to some extent due, obviously, to differing sub-editorial preferences e.g.: "Winnings" (Sydney Morning Herald.) "Prizemoney" (The Age), convey, it is alleged, and reasonably so, the same, or substantially the same, defamatory imputations. The defendants contend that it is an abuse of process, as well as being contrary to the legislative intent inherent in the provisions of the Act noted above, to permit the two actions to remain separate.

20. Much of the adverse effect of the duplication of these proceedings will be overcome by the joint hearing of the two proceedings. Indeed, but for the provisions of s 139F of the Act, there would be little, if any, practical difficulty in the giving of such a direction as opposed to ordering consolidation. It is, however, common ground and, indeed, correctly conceded in the absence of the express repetition of s 10 of the Defamation (Amendment) Act 1909 (supra), that, if the proceedings are consolidated, one cap on damages will apply, not two, to the total award of damages if the plaintiffs succeed in the suit albeit the total award would no doubt be apportioned as contemplated by s 10.

21. The plaintiffs contend that there is no statutory prohibition on the way in which they have framed the proceedings. They contend that they have simply taken advantage of a right otherwise open to them to sue separately, as they have done, in respect of separate publishers and publications. They point out that s 118(2) of the Act provides that Chapter 9 of the Act (Defamation) "does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise...".

22. The application for consolidation was considered by Cowdroy J, who delivered a reserved decision on 18 November 2011. His Honour accepted that s 118(2) was consistent with the common law approach to strictly confine the operation of provisions seeking to limit or adversely affect common law rights (see The Daniels Corporation International Pty Ltd and Another v Australian Compensation and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [11].

23. The defendants also submitted that s 133 of the Act supported their contention. Section 133 provides

If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person 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.

24. It was not disputed that it would be an abuse of process to sue separately, for example, both the proprietor and editor of the same publications; see Age Corporation Ltd v Beran [2005] NSWCA 289 at [49]. Section 133 allows for leave to be given and, by analogy, separate proceedings might or not be consolidated depending on the perceived interests of justice in the circumstances.

25. Those observations extend, in the current matter, to the bringing of separate proceedings against the journalist, the publisher, the printer as well as other persons who have together engaged in publishing the allegedly defamatory matter.

26. Nevertheless, as his Honour found, there are different defendants to the two proceedings and, indeed, an additional plaintiff in one so that each suit is validly constituted separately by reference to s 133 of the Act.

27. His Honour accepted that the defamatory matter in each publication was "very similar". He set out a comparison table in "Annexure A" to his judgment. It is reproduced in similar form hereunder with the differences highlighted.

ANNEXURE A -Comparison tables - Sydney Morning Herald and The Age articles

Cummings in $6.4m fight over broken-down racehorses

THE racehorse trainer Anthony Cummings, son of the "cups king" Bart Cummings, is fighting claims he worked horses so hard they were unable to race, took sale commissions he should not have and bought horses for a client that was not fit for competition

RACEHORSE trainer Anthony Cummings is fighting claims he worked horses so hard they were incapable of racing, took sale commissions he shouldn't have and bought horses for a client that were not fit for competition.

In documents filed in the NSW Supreme Court, the horse breeding and training operation Patinack Farm, run by the mining tycoon Nathan Tinkler, is seeking $6.4 million from Mr Cummings and his companies, Cummings Thoroughbreds and Something Fast. It says this is the loss in value of horses Mr Cummings brought on its behalf and trained until they were broken down or lame, preventing them earning winnings.

In documents filed in the NSW Supreme Court, horse breeding and training outfit Patinack Farm, run by mining tycoon Nathan Tinkler, is seeking $6.4 million from Cummings and his companies, Cummings Thoroughbreds and Something Fast, for what Patinack says is the loss in value of horses Cummings brought on its behalf and trained until they were broken down or lame, preventing them from earning prizemoney.

But the claim was made only after Mr Cummings sought $173,000 from Patinack for unpaid trading fees and costs.

But the claim was only made after Cummings sought $173,000 from Patinack in unpaid training fees and costs.

Mr Tinkler refused to pay saying Mr Cummings had not performed all the work he was charging for.

In a cross-claim, Patinack alleged Mr Cummings breached his duty of care when training the horses and profited at its expense when he was supposed to be acting for it at sales in 2008, where he allegedly bought more than 100 horses for the company.

Tinkler refused to pay the fees, saying Cummings had not performed all the work he was billing for.

Then, in a cross-claim, Patinack Farm alleged Cummings breached his duty of care when training the horses and profited at its expense when he was supposed to be acting for it at sales in 2008, where Cummings allegedly bought more than 100 horses on Patinack's behalf. The pair officially split in December 2008.

He said he did not breach any duty of care, and any loss or damage is due to Patinack's negligence in failing to monitor the training and by letting horses be raced or trialled when it knew they should not be.

Cummings, son of master trainer Bart Cummings, has denied the allegations.

He says he did not breach any duty of care, and any loss or damage is due to Patinack's negligence in failing to monitor the training and by causing horses to be raced or trialed when it knew they shouldn't be.

Patinack lists 15 thoroughbreds as "horses that have been broken down due to negligence", including five that allegedly had no chance of racing.

The remaining 10 horses allegedly have a 50 per cent chance of racing, including Siderus, purchased for $2.5 million, and Metallurgical, brought for $2.2 million.

Under ''horses that have broken down due to negligence'' Patinack lists 15 thoroughbreds, including five that allegedly now have no chance of racing.

According to Patinack, Mr Cummings had a duty to buy sound horses he thought would eventually win Group 1 races and train them in a way that would not stress or injure them.

According to Patinack, Cummings had a duty to buy sound horses he thought would eventually win Group 1 races and train them in a way that would not make them stressed, injured or over trained.

Mr Cummings denies he had a duty to prevent overtraining, denies training some of the horses and denies the horses became lame or broke down while being trained by him or his company.

Cummings denies he had a duty to prevent overtraining, denies training some of the horses and denies each of the horses listed became lame or broke down while being trained by him or his company.

Patinack also alleges Mr Cummings wrongly took commission and fees from sales. This includes $2.8 million from $18.8 million worth of horses he allegedly bought at the 2008 Magic Millions sale, when he was supposed to be buying 58 horses for Patinack at the best possible price.

Patinack Farm also alleges Cummings wrongly took commissions and incentive fees from sales, including $2.8 million from the $18.8 million worth of horses he allegedly bought at the 2008 Magic Millions yearling sale, when he was supposed to be getting the 58 horses for Patinack at the best possible price.

Mr Cummings says he never took a commission Patinack was not aware of, denies he had a duty to buy only horses with the potential to win and admits purchasing only some of the horses on Patinack's behalf.

Cummings claims he did not take a commission without Patinack Farm's knowledge, denies he had a duty to buy only horses with the potential to win and only admits purchasing some of the horses on Patinack's behalf.

The matter is due before the court for directions on March 9.

The matter is due before the court for directions on March 9.

Tinkler, 33, is listed as Australia's richest man under 40 and has made his fortune from coal mining investment.

He still has hundreds of horses and has the majority of them prepared at Warwick Farm by fledgling trainer John Thompson.

28. It is apparent that the term 'the same defendant' does not embrace different persons who, even in concert, publish the same or substantively the same matter. Thus leave is not required to bring the two sets of proceedings, indeed separate proceedings could have been commenced against each publisher of the defamatory matter.

29. That does not dispose of the matter, however, because the defendants in each of SC 411 of 2010 and SC 412 of 2010, though different, have published substantially the same matter. Separate actions may well have been commenced, as his Honour acknowledged, to avoid the statutory cap on damages. That, of itself, his Honour held, does not make it an abuse of process.

30. Of itself, the institution of two suits does not in my/our view amount to an abuse of process. Nevertheless, that does not answer the question as to whether those suits should be consolidated. It would clearly be an abuse of process to have them heard and considered separately.

31. Leave to appeal is necessary as this is an appeal in relation to an interlocutory order which had been sought by the defendants.

32. The application points to the purpose of the application for consolidation as being that of avoiding the doubling the cap under s 139F of the Act. I agree that that would be the result. The issue is whether the institution of two proceedings is a legitimate means of avoiding the limitation imposed by s 139F.

33. The defendants accept that the institution of two proceedings is not barred by the terms of s 133 of the Act. The defendants are different persons. Nevertheless, they submit that the decision of the plaintiffs to institute two sets of proceedings and, perhaps, adding the Cummings company as a plaintiff in one of them, to avoid the application to the proceedings of s 133 of the Act is an abuse of process, at least in the sense that it is a prejudice that should be avoided by an order for consolidation.

34. There are cases, as the defendants submit, where the taking of a multiplicity of actions where one would do is an abuse of process by reason of creating a multiplicity of actions between two parties or sets of parties in respect of the same matter at issue. Reference is made to Carey v ABC [2010] NSWSC 709 where McCallum J noted various previous decisions affirming that proposition at [19]:

it is an abuse of process to bring separate and successive proceedings against the same defendant in respect of the same matter.

35. But her Honour also noted, correctly, in my respectful opinion, that, given the power to grant leave for a further proceeding even if against the same defendant in respect of the same matter, the creation of a multiplicity of proceedings is not necessarily an abuse of process. Of course it may well be an abuse of process. It will be an abuse if the additional proceeding requires a defendant to have to defend an additional proceeding when one would do. Nor is an additional proceeding called for if the plaintiff could not only vindicate his, her or its reputation and honour but also obtain "complete monetary compensation" in that first action (Maple v David Syme & Co Ltd [1975] 1 NSWLR 97,102 per Begg J).

36. None of those vexatious consequences apply in the present case. The only consequence that might be so characterised is the availability of two "caps" raising the total damages that may be awarded from $250,000 (plus adjustments) to $500,000 (plus adjustments).

37. Whilst the cap prescribed by s 139F of the Act might mean that a plaintiff obtains less than complete monetary compensation, it is relatively generous. It is indexed. It applies only to non-economic loss. Nevertheless, a potential disadvantage to a plaintiff not imposed by law cannot lightly be disregarded. On the other hand, artificially to split proceedings so as to attract an advantage not otherwise open should not be encouraged.

38. Something of that kind occurred in the context of an industrial accident associated with a worker's compensation claim in the matter of ACT Engineering Pty Ltd v Cuckow (1973) 1 ACTR 93. A building worker was killed in circumstances entitling his widow and 3 infant children both to compensation under the Workmen's Compensation Ordinance 1959 (ACT) and damages at common law. The Ordinance provided that any sum recovered by an eligible person under the general law was subject to a right in the workers compensation insurer to be refunded the compensation paid to that person out of the sum recovered as damages. The Ordinance also provided that any dependant of the deceased could bring a claim under the Ordinance. A claim for compensation was made by only one child (being the youngest) to recover the fixed sum and weekly payments till that child turned 16. A claim for damages was made by the widow and included only 2 of the 3 children of the deceased (the elder two). The defendant's insurer, representing the tortfeasor employer, sought to set aside the award made pursuant to that claim.

39. A Full Court (Fox, Blackburn and Connor JJ) upheld the award, rejecting the view that the policy of the Ordinance precluded an award of both damages and compensation and so rendered the award invalid.

40. More recently, in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [129 - 141] McColl JA pointed out that multiple proceedings, even in respect of the same defamatory matter, against different publishers is neither an abuse of process in itself nor a division of the remedy properly available in one proceeding.

41. In truth, that issue does not arise in these proceedings. There will be one hearing and no duplication of costs. There will be separate awards against each defendant if the action succeeds, but that is the case in any event (see Costello & Abbott v Random House Australia [1999] ACTSC 13; (1999) 137 ACTR 1).

42. The issue here is whether, by being confined to suing in the one proceeding, the plaintiffs, in the aggregate, are entitled to no more than the cap for non-economic loss. If no more than the cap can be so awarded, the defendants contend that it would be an abuse of process for all plaintiffs who might be defamed by the same defamatory matter not to join together in suing that defendant or those defendants in the one proceeding so that the defendant or those defendants are not vexed by the larger potential pay-out. That is not mandated by the Act, as the defendants concede, but they seek to achieve the same result by reference to abuse of process.

43. It is conceivable that, if the view was taken that only one proceeding should be permitted in respect of any publication or group of publications such as the present, it could lessen a publisher's potential liability, enabling the publisher to defame as many persons as possible in the one publication or series of publications and be subject to only one cap. Of course, leave might be given to bring more than one proceeding but the position taken by the defendants in this case would be that such a course should not be permitted. Leave to proceed by way of more than one proceeding could not be assured.

44. In my opinion, the resolution of this dilemma is to view each case separately to determine what, if any, is the prejudice to the defendant(s) or the plaintiff(s) in a case where proceedings are lawfully begun separately and are then sought to be consolidated or joined together. To resolve the issue it is relevant to identify the unfair prejudice to be avoided and order a remedy accordingly. Thus, where a plaintiff sues separately several defendants who, in combination, have published the same or substantially the same defamatory matter, the cap should apply. The proceedings should be consolidated. Conversely, where the same defendants defame, even by the same matter, several persons, it may be appropriate for the cap not to apply but for the several proceedings to be heard together in respect of each person defamed.

45. In the present case, the defendants have published substantially the same matter and they are associated entities. The plaintiffs are, in substance, the same, sharing the same reputation. It seems to me, therefore, that, in the instant case, there should be but one set of damages. It would be unjust in my view to permit the plaintiffs to deprive the defendants of the protection of s 139F of the Act merely by reference to a decision to split the case taken by the plaintiffs so as to impose a potential liability on the defendants which, but for that decision, not dictated by necessity or any other good reason, would be forbidden by law without leave being granted. There are, as I have noted, circumstances in which such leave might well be appropriate, even if s 133 of the Act applies.

46. In the circumstances of this matter, I am of the opinion that the two sets of proceedings should be consolidated and I would so order.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Chief Justice Higgins.

IN THE SUPREME COURT OF THE ) No. ACTCA 53 - 2011

AUSTRALIAN CAPITAL TERRITORY ) No. SC 411 of 2010

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: FAIRFAX MEDIA PUBLICATIONS PTY LIMITED (ACN 003 357 720)

BETWEEN: FAIRFAX DIGITAL AUSTRALIA AND NEW ZEALAND PTY LTD (ACN 087 887 456)

ANTHONY CUMMINGS THOROUGHBREDS PTY LTD (ACN 116 873 271)

1. I agree with the judgment of her Honour Katzmann J and would order that the applications for leave to appeal be dismissed with costs.

I certify that the preceding paragraph numbered [47] is a true copy of the Reasons for Judgment herein of his Honour Justice Burns.

IN THE SUPREME COURT OF THE ) No. ACTCA 53 - 2011

AUSTRALIAN CAPITAL TERRITORY ) No. SC 411 of 2010

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: FAIRFAX MEDIA PUBLICATIONS PTY LIMITED (ACN 003 357 720)

BETWEEN: FAIRFAX DIGITAL AUSTRALIA AND NEW ZEALAND PTY LTD (ACN 087 887 456)

ANTHONY CUMMINGS THOROUGHBREDS PTY LTD (ACN 116 873 271)

1. 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.
2. 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.
3. 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.
4. 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:

whether or not it is legitimate for a plaintiff to commence a number of different proceedings in respect of what is, in substance, the same article, in order to avoid the damages cap provided for in s 139F of the Civil Law (Wrongs) Act (ACT) which applies to "proceedings" rather than individual publications. This question involves a consideration of whether, where the constitution of the proceedings does not fall foul of s 133 of the Act because there are different defendants in each of the separate proceedings (as here), the proceedings are nonetheless an abuse of process by reference to the applicable principles at common law.

1. The proceedings relate to articles and a bill poster published on or about 25 February 2010. SC 411 of 2010 is concerned with three articles. One was published on the websites of the Herald and The Brisbane Times, another on The Age website, and the third in the print version of The Age. SC 412 of 2010 relates to one article published in the print version of the Herald and a bill poster advertising the newspaper. The articles concern allegations made in a cross-claim against Mr Cummings and/or his company in the New South Wales Supreme Court. The cross-claimant in that litigation is Patinack Farm ("Patinack"), a horse breeding and training operation owned by the mining magnate, Nathan Tinkler.
2. The story presented in each article is essentially the same but there are some differences in the words and expressions used to convey it. All of the articles report, amongst other things, serious allegations apparently made by Patinack in the cross-claim. They include allegations that Mr Cummings trained horses until they were broken down or lame and that Mr Cummings wrongly took commission and fees from sales. They also report Mr Cummings's denials.
3. It seems to be common ground that at least two out of the three matters complained of in SC 411 of 2010 are republications, subject to sub-editing, of parts of the Herald article complained of in SC 412 of 2010. Kate Lahey is the journalist who wrote the stories that appeared in the print versions of the Herald and The Age. The evidence is that "she did not separately author" the online articles.

1. The power to consolidate the proceedings is not in doubt. Nor is it in doubt that the power was enlivened in this case. The question below was whether the discretion to exercise it should be invoked. Rule 270 of the Court Procedures Rules 2006 (ACT) relevantly provides:

(1) This rule applies if, in relation to 2 or more proceedings, it appears to the court that -

• (a) a common issue of law or fact arises; or
• (b) the relief sought in each of the proceedings is in relation to, or arises out of, the same transaction or event or series of transactions or events; or
• (c) a decision in a proceeding will decide or affect the other proceeding or proceedings; or
• (d) it is otherwise desirable to make an order under this rule.

(2) The court may order that -

• (a) the proceedings be consolidated; or
• (b) the proceedings be heard together or in a particular sequence; or
• (c) any of the proceedings be stayed until any other of the proceedings have been decided.

1. Before the primary judge the applicants submitted that the articles and the pleaded imputations were substantially the same and that the defendants were related to each other. They argued that the two separate proceedings were carefully contrived to circumvent what they submitted was the policy behind ss 120 and 133 of the Civil Law (Wrongs) Act 2002 (ACT) ("the Wrongs Act") (presumably to discourage multiple proceedings) and the statutory limit on damages imposed by s 139F of the Wrongs Act. For these reasons, they contended, it was an abuse of process to begin separate proceedings and the two proceedings should be consolidated.
2. Section 120 provides:

Single cause of action for multiple defamatory imputations in same matter

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 1 defamatory imputation about the person is carried by the matter.

Leave required for further proceedings in relation to publication of same defamatory matter

If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person 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.

1. Section 139F imposes a cap on damages in defamation suits. It 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.
2. Each of these provisions has its counterpart in the Uniform Defamation Acts introduced by every state and the Northern Territory in 2006. In Davis v Nationwide News Pty Ltd [2008] NSWSC 693 ("Davis") at [8][10] McClellan CJ at CL held that the cap on damages imposed by the NSW equivalent of s 139F (s 35(1) of the Defamation Act 2005) applied to limit the damages in proceedings regardless of the number of causes of action they involve.

1. The primary judge observed that the parties named as defendants in the two proceedings were different legal entities. For this reason he held that the requirement in s 133 that the proceedings be brought against the same defendant was not satisfied and there was no need for the respondents to seek the leave of the Court to continue with the two proceedings.
2. His Honour said that the two articles were very similar but that there were also some important differences. Only one of the publications was common. He considered that neither the letter of, nor the policy behind, s 133 was contravened by the institution of two proceedings. He felt that to treat the institution of two proceedings as an abuse of process where the respondents had followed s 133 to the letter by not suing the same defendants on the same articles would extend the operation of s 133 beyond the intention of the Parliament. He said that the respondents might have brought two proceedings to avoid the cap on damages but that they were not prevented from doing so. Nevertheless, as common issues will arise in the two proceedings, he ordered that they be heard together.

The legal principles affecting the determination of the application

1. The decision of the primary judge was a discretionary decision. It follows that the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499 apply. In other words, it is not enough that we might have reached a different conclusion if we had heard the interlocutory application. Error must be shown in the exercise of the discretion. Such an error will arise where, for example, the judge has acted on a wrong principle. That, the applicants submitted, is the situation here.
2. The applicants' argument was that his Honour erred by determining the question solely by reference to the Wrongs Act and failing to have regard to common law principles. The question, they submitted, was not whether s 133 was contravened but whether in the circumstances there was an abuse of process.
3. The first question, however, is whether leave to appeal should be granted. Generally speaking that requires attention to two matters: whether the decision below is attended with sufficient doubt to warrant its reconsideration by the appellate court and whether substantial injustice would result if leave were refused and the decision was wrong. See Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 and Harmer v Oracle Corporation Australia Pty Ltd [2013] FCAFC 63 at [35].
4. It is well established that where an application concerns a matter of practice and procedure, as this application unquestionably does, appellate courts exercise particular caution. In Adam P Brown Male Fashions Proprietary Limited v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177 the High Court declined to lay down "rigid and exhaustive criteria" because of the infinite variety of circumstances that will arise. The Court merely repeated, with approval, the statement of Sir Frederick Jordan in In re the Will of F B Gilbert (dec) [1948] NSWStRp 16; (1946) 48 SR (NSW) 318 at 323 that:

[t]here is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.

1. The applicants submitted that Refshauge ACJ had already found in their favour on the issue of substantial injustice and that the only matter for this Court was whether there was merit in the proposed appeal. I reject the submission. Notwithstanding the strong views his Honour expressed in his reasons for judgment, he did not merely refer the question of the merits to this Court; he referred the applications for leave.

Is there sufficient doubt about the decision below to warrant its reconsideration?

1. The applicants do not suggest that they are the same defendants for the purposes of s 133 of the Wrongs Act. They did not submit that the respondents required leave to bring the second proceeding. Their point is neatly encapsulated in para 21 of their written submissions:

[T]he fact that section 133 does not prohibit the constitution of the proceedings is not the end of the enquiry, nor the defendants' argument. The learned primary judge nonetheless appears to have approached the matter on the basis that it was: see Cowdroy J at [47]-[52] (AB53 94-5; AB54/2 327-8). That analysis overlooked the submission that, even though section 133 may not have been infringed, the maintenance of the proceedings in their current form is nonetheless an abuse of process. Section 133, as are its equivalents and as was its predecessor, is directed to preventing only one aspect of the potential abuses of process which obtain when a plaintiff commences a multiplicity of actions in respect of the same matter.

1. For the following reasons I am not persuaded that the point is made out. Consequently, I am not satisfied that there is sufficient doubt about the decision to warrant its reconsideration on appeal.
2. His Honour did not conclude his inquiry in the alleged manner. Having decided that s 133 had not been infringed and that s 120 did not preclude the continuation of two separate proceedings, his Honour said this (at [48]-[50]):

The Court also rejects the submission that despite s 133 not being violated, the 'policy behind' s 133 has been contravened by the plaintiffs and the two proceedings constitute an abuse of process and should be consolidated.

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 proceedings 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.

The Court considers that there is no basis for interpreting 'the same defendant' as meaning 'similar or related defendants', nor does the Court consider that there is a basis for concluding that there exists an abuse of process due to the 'policy behind' s 133...

(Emphasis added.)

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. I have real difficulty with this submission.
9. 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).
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. As Handley JA explained in Harris at 281 (Stein and Santow JJA agreeing at 282):

The injured person's remedies for successive wrongs are cumulative, not alternative or concurrent. The principles were summarised by Lord Nicholls in Tang Man Sit v Capacious Investments Ltd [1996] AC 514 at 522 in a passage approved in Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635 at 653 [39] by Gleeson CJ and Callinan J:

"...Faced with cumulative remedies a plaintiff is not required to choose. He may have both remedies. He may pursue one remedy or the other ... or both ... just as he wishes. ... He may obtain judgment for both remedies and enforce both judgments. When the remedies are against two different people, he may sue both ... He may do so concurrently, and obtain judgment against both. Damages to the full value of goods which have been converted may be awarded against two persons for successive conversions of the same goods. Or the plaintiff may sue the two persons successively. He may obtain judgment against one, and take steps to enforce the judgment. This does not preclude him from then suing the other."

1. The applicants also argued that the respondents' conduct would be an abuse of process because it exhibits two of the characteristics of abuse of process referred to by the High Court in PNJ v R (2009) 252 ALR 612; [2009] HCA 6 at [3]: where the use of the court's procedures would be unjustifiably oppressive to a party and where the use of the court's procedures would bring the administration of justice into disrepute. The basis for this submission was that the applicants would be deprived of the benefit of the damages cap in s 139F(1). Yet, the submission assumes that the commencement of two proceedings would be unjustifiably oppressive to the applicants and would bring the administration of justice into disrepute. It does not establish that that is so. It is true that the applicants could be exposed to greater damages than if the respondents had sued on all publications in the one proceeding. But I do not see why that amounts to unjustifiable oppression. Nor is it self-evident that the administration of justice would be brought into disrepute by a plaintiff suing different, albeit related, defendants in separate proceedings for separate publications, though the subject-matter is substantially the same. After all, the Wrongs Act, itself, allows for consecutive defamation proceedings to be brought against the same defendant in relation to the same publication; what it proscribes is the commencement of such proceedings without leave.
2. But for the cap on damages the respondents may well have brought only one proceeding. Indeed, it is almost certainly so. Yet that, in itself, does not mean that to bring two amounts to an abuse of process.
3. As Herring CJ observed in Cameron v McBain [1948] VicLawRp 41; [1948] VLR 245 ("Cameron") at 247 in relation to the equivalent Victorian rule relating to consolidation of proceedings, the cases lay down no principle upon which the discretion is to be exercised. Each case turns on its own facts:

The question would seem to be whether in all the circumstances it is convenient that the actions be consolidated, and in deciding whether it is convenient, regard may be had to such matters as the desirability of avoiding multiplicity of actions, and the saving of time and expense. At the same time the interests of the parties should not be prejudiced by the making of an order.

1. 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.
2. 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.
3. 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.
4. 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:

The parties are identical in both proceedings. Although the subject-matter of the two proceedings is not the same, or "alike", for the purposes of s 23 of the Defamation Act, both proceedings are claims for defamation arising from the publication, by the defendants, of articles about the plaintiff in the same newspaper. There are some common allegations in the articles, which have caused the plaintiff to plead mere innuendoes which are common. There are some common issues of fact and law in the two proceedings. Thus, Mr Clarke correctly accepted that, if the two proceedings are not consolidated, they should be tried together. Consolidation of the two proceedings would save duplication of procedural steps, and lead to a more efficient, and less costly, disposition of the matters. The question, then, is whether an order for consolidation might cause unfair prejudice to the plaintiff.

1. Mr Buckley contended that if the two proceedings were consolidated, he would be exposed to the risk that s 35 of the Victorian Act would be construed so as to apply one maximum limit to the amount of damages he might receive, rather than two such limits for each cause of action. He relied on the comments of McClellan CJ at CL in Davis. Kaye J accepted (at [18]) that this was a risk but held that it was not "prejudice of the kind which should inhibit an order for consolidation of the two proceedings". He felt that prejudice cut both ways: one party's potential detriment was the others' potential advantage. He said (at [18]) that if he declined to make an order, the defendants would be subjected to "the unfair prejudice of being deprived of the potential benefit, which they might otherwise have derived from the application of s 35 of the Defamation Act".
2. In the Court of Appeal Nettle JA said (at [7]) that this was the wrong way to approach the matter. His Honour said that Mr Buckley had a prima facie right to bring two separate proceedings. He noted that the primary judge had previously upheld his right to bring the second proceeding without obtaining leave under s 23 of the Victorian Act. He continued at [8]:

As I apprehend the operation of the Act, it is intended that, if a plaintiff satisfies the requirements under s 23, and so is permitted to bring a separate proceeding, the plaintiff is prima facie entitled to the benefit of a further limit of $250,000 in respect of that proceeding. In effect, the Act provides in itself for the circumstances in which proceedings will and will not be brought as one. The effect of the consolidation order is to cut across that intention.

1. His Honour was unpersuaded by a submission from the publisher that, despite the plaintiff having "passed the hurdle of s 23", his right to bring two separate proceedings was "not at large but was subject to the controls constituted of a common law consolidation order, with the benefits which that will deliver to the defendant". He said (at [12]):

If I am correct about the way in which s 23 and 35 are intended to operate, under the substantive law which now governs the rights and obligations of parties in respect of defamation publications the [plaintiff] had a substantive right to seek to recover up to $500,000 in damages, and the [defendant] had a substantive correlative contingent liability in the same amount. In those circumstances, to make a mere procedural consolidation order which halved the potential value of the [plaintiff]'s substantive rights and halved the [defendant]'s correlative substantive contingent liabilities worked a radical re-ordering of the parties' substantive rights and obligations, with the risk of substantial prejudice to the [plaintiff].

1. It is true, as the applicants pointed out, that the facts in Buckley were different. I also appreciate that the abuse of process argument does not seem to have been run in that case. But these differences are not sufficient to detract from the substance or significance of the point that Nettle JA was making_._ The Court of Appeal's decision did not turn on the differences between the articles. The gravamen of the Court's reasoning is that where s 23 is not engaged the plaintiff has a presumptive right to bring separate proceedings and it would result in unfair prejudice to deprive a plaintiff of the chance of recovering two separate awards of damages for non-economic loss. I am not satisfied that the Court's decision was plainly wrong. Quite apart from the Court's obligation in these circumstances to follow the judgment, it being a decision of an intermediate court on uniform national legislation (see, for example, Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [135]), it is difficult to see how a course of conduct sanctioned by an appellate court could ever amount to an abuse of process.

Would substantial injustice result if leave were refused and the decision was wrong?

1. In any case, I am not satisfied that substantial injustice would result if leave were refused and the decision below was wrong.
2. It does not follow from the refusal of the primary judge to consolidate the proceedings that the applicants will suffer any injustice. There would, in any event, have to be two proceedings as there is no issue about the maintenance of a separate proceeding in relation to the poster. As the respondents submitted, the effect of s 139I(1)(d) of the Wrongs Act is that the applicants can rely in mitigation of damages on the fact that the respondents have brought separate proceedings concerning another publication with the same meaning or effect as the defamatory matter. Anyway, it remains to be seen whether the respondents will succeed at all in either proceeding and, if they do, whether the damages they recover would exceed the statutory maximum. If the decision to refuse to consolidate the proceedings affects the outcome, then the applicants would have a right of appeal (cf. Guss v Johnstone [2000] FCA 1455), although for the reasons I have given I do not think it would succeed.

1. The applications for leave to appeal should be dismissed with costs.

I certify that the preceding fifty-three (53) paragraphs numbered [48]-[100] are a true copy of the Reasons for Judgment herein of her Honour Justice Katzmann.

Counsel for the Applicants: Mr T D Blackburn SC with Mr A T S Dawson

Solicitor for the Applicants: Banki Haddock Fiora Lawyers

Counsel for the Respondents: Mr T K Tobin QC with Ms S Chrysanthou

Solicitor for the Respondents: Pikes & Verekers Lawyers