HER HONOUR: These proceedings raise a difficult question as to the respective liability in defamation of a source and a journalist to whom the source makes a defamatory statement later used as part of a larger story.
The defendants made allegations concerning the plaintiff to a television journalist. Part of what was said was reproduced as part of the 60 Minutes program. The program also included a significant amount of other material. The plaintiff has chosen to sue only the two sources for the words spoken to the journalist. He has not sued Channel 9 for the whole 60 Minutes program. It has been confirmed that the television's re-publication of the words spoken to the journalist by each source is relied upon not as a separate cause of action but only as "swelling the damages".
In those circumstances, the defendants sought leave to file a cross-claim against Channel 9. I ruled on the limited question whether they should have leave to do so (after the expiration of the time for filing a cross-claim contemplated by the rules) in my earlier judgment in Greinert v Brooker [2018] NSWSC 1194. That judgment did not determine a separate dispute foreshadowed by the parties as to the form and content of the proposed cross-claim, deciding only a question raised by the defendants concerning the proper construction of s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). I granted the leave sought (subject to the cross-defendants' entitlement to agitate the foreshadowed objections).
In response to the cross-defendants' objections as to the form of the proposed cross-claim, the defendants propounded a proposed amended cross-claim. The Channel 9 parties maintain their objection to the form of that pleading. That was the first matter argued last Friday.
The burden of the complaint is that the proposed amended cross-claim fails to plead a platform of facts which, if established, would prove that the Channel 9 parties are liable for any tort. The critical paragraphs in the proposed amended cross-claim are as follows.
"5. The plaintiff has commenced proceedings against the cross-claimants for damages for defamation and other relief in respect of publications made on or about 4 September 2016 to Ross Coulthart ("the Interviews") and for their re-publication on the "60 Minutes" programme of 4 September 2016.
6. For the purposes of this cross-claim only, if (which is denied so far as the facts, matters and circumstances alleged by the plaintiff relate to the acts or conduct of the cross-claimants and are otherwise not admitted) the facts, matters and circumstances alleged by the plaintiff in his statement of claim are correct, the cross-defendants are tortfeasors who are liable to the plaintiff in respect of the same damage as the damage in respect of which the cross-claimants are alleged to be liable to the plaintiff."
Mr Richardson, who appears for the Channel 9 parties, submits that the proposed amended statement of cross-claim does not address the difficulty foreshadowed as recorded in the earlier judgment.
In short, Mr Richardson submitted that the language of s 5 of the Law Reform (Miscellaneous Provisions) Act requires the cross-claimant to establish that any proposed contributor to the damage for which the defendant is liable to the plaintiff must be "liable" for the same damage, whether on the basis of joint tortious liability or several (concurrent) liability, but, in any event, must be liable based on a tortious cause of action. On that basis, he submitted that the platform of facts relied upon to establish liability must be pleaded.
Mr Rasmussen, who appears for the defendants/cross-claimants, submitted that the section is concerned with liability for the same damage and does not require the cross-claimant to plead out the elements of the basis for the alleged liability of the cross-defendant, it being sufficient to assert liability for the same damage.
In my view, Mr Richardson's submission is plainly right. The section must be considered as a whole. It requires the cross-claimant to establish that the cross-defendant, if sued, would have been liable in respect of the same damage. As a requirement of fairness, the cross-defendant must necessarily know the basis on which it is contended that he would have been liable if sued.
During argument before the earlier judgment, and in the body of that judgment, the analogy was considered of tortious liability for a car accident. An example raised in argument was where a negligent driver is responsible for a motor vehicle accident causing personal injury and, subsequently, negligence on the part of a medical practitioner contributes to the same damage suffered by the victim of the motor vehicle accident. In that instance it is clear, in my assessment, that the medical practitioner, if he or she was to be the defendant to a cross-claim at the suit of the negligent driver, would be entitled to have pleaded against him or her in the cross-claim the separate cause of action founding his or her alleged tortious liability.
The position must be the same, in my view, in respect of a claim in defamation. The plaintiff is entitled to sue only the source but may also have a cause of action against the media broadcaster of the segment in question. A source sued alone can seek contribution against the broadcaster but must, in that instance, plead the elements of the cause of action on the strength of which it is alleged that the broadcaster would, if sued, have been liable in respect of the same damage (as stated in my earlier judgment, I do not think it is necessary for the liability to coincide completely).
The present proposed amended cross-claim fails to plead the elements of any cause of action against the broadcaster. For that reason, leave to file a cross-claim in that form must be refused.
The second issue argued last Friday was whether it follows that the plaintiff's pleading as against the defendants is bad. The provenance of that argument was the submission made by Mr Richardson on behalf of the cross-defendants recorded at [8] of my earlier judgment, as follows:
"The second basis for the submission was focused on the plaintiff's pleading of his claim as against the defendants. It was submitted that the pleading of republication as swelling the damages was bad in form because the imputations alleged to arise from the republication had not been specified, contrary to the principle stated by McColl JA in Bracks v Smyth-Kirk [2009] NSWCA 401 at [128]-[129]. Separately, it was submitted that the republication was not capable of satisfying the "sense and substance" test."
In the passage from Bracks v Smyth-Kirk relied upon, McColl JA said:
"128. Salmon J's words substantially accord with the second and third of the circumstances to which Lopes LJ adverted in Speight v Gosnay. They identify two matters a plaintiff wishing only to sue on an original publication, but also to recover damages for all republications flowing from that publication, must establish to make good that claim. I cannot, therefore, with respect agree with the primary judge's conclusion (at [30]) that a plaintiff who sues only on the original publication, relying on the republication as part of the damages claim rather than as a discrete cause of action, does not have to plead or establish the matters set out in Speight v Gosnay. As was explained in Habib (at [122] - [125]) some of those matters will be essential to establishing the causal nexus between the original publication and the republication necessary to establish the plaintiff's contention that "republication of that matter by a third party was the foreseeable consequence of its original publication and did not break the chain of causation so as to constitute a novus actus interveniens": see Slipper v British Broadcasting Corporation [1991] 1 QB 283 (at 296) per Stocker LJ; (at 300) per Bingham LJ; (at 301 - 303) per Slade LJ.
129. An original publisher will only be liable in the circumstances posited in the second and third Speight v Gosnay circumstances for the republication of the original sting whether in whole or in part: McManus v Beckham [2002] EWCA Civ 939; [2002] 4 All ER 497; [2002] 1 WLR 2982 (at [13], [34]) per Waller LJ (Clarke and Laws LLJ agreeing). Just as the liability of a republisher turns upon the context in which the republication occurred (John Fairfax Publications Pty Limited v Obeid (at [96])), so, too, may the original publisher's liability turn on the context of the republication. That was the reason I understand Nicholas J required the appellant to plead the campaign letter, in order to place the publication of Schedule A in context. Thus it is necessary, even in a "republication as damages" case, to plead the context of the republication as well as the meanings alleged to be conveyed by the republication to put the defendant on notice of the case the plaintiff will advance: see, for example, Hanrahan v Ainsworth. I also cannot, therefore, with respect agree with the primary judge's tentatively expressed doubt (at [47]) as to whether it was necessary for a plaintiff in such as case to plead the imputations said to arise from the republication." (emphasis added)
Unsurprisingly, the defendants embraced that argument for their own purposes, submitting at the hearing before me last Friday that the plaintiff's claim as against them is liable to be struck out because the plaintiff has failed to plead the meanings alleged to be conveyed by the republication.
Ms Chrysanthou, who appears for the plaintiff, submitted that the argument is one which should be dismissed out of hand as having been raised altogether too late, the appropriate time for the consideration of any objection to a plaintiff's pleading being the first listing of the proceedings, as contemplated by the Defamation List Practice Note SC CL 4, cl 13.
Mr Rasmussen submitted that the argument could not have been brought earlier, since it was prompted by the argument concerning the cross-claim. I do not accept that the argument is one which could only have been raised in response to the issues raised by the cross-claim. If the principle relied upon holds true, that was the position at the time of the first listing, regardless of the position taken by the newly-joined cross-defendants. There is considerable force in Ms Chrysanthou's submission that the application should be dismissed out of hand for that reason alone.
In any event, I am not persuaded that the pleading is liable to be struck out on the basis asserted. In my respectful opinion, Mr Richardson's submission, which appears to have inspired the objection now taken by Mr Rasmussen, focused unnecessarily on the form of the plaintiff's pleading and entailed a measure of overreach.
Both arguments assumed the correctness of the remarks of McColl JA to which I have referred. For the purposes of Mr Richardson's opposition to the filing of the cross-claim, it would have been enough for him to contend that, if the defendants sought to bring a cross-claim against the Channel 9 parties, the case had to be pleaded as against those parties as if they had been sued by the plaintiff. Of course, if they had been sued by the plaintiff, the case would have to have been pleaded in the usual way including specifying imputations (as I have held above).
The form of the plaintiff's pleading as against the defendants does not necessarily have to be the same as the form of the defendants' pleading against the proposed cross-defendant. As regards the source, the options available to a plaintiff defamed by both the words of the source to a journalist and the subsequent re-production of those words in a defamatory broadcast are, as this case illustrates, to sue the source for the broadcast as a separate cause of action or to rely on the broadcast (as against the source) only as to damages.
In the first example, the plaintiff would have to plead out as against the source (as a principal in the publication of the broadcast) the imputations allegedly conveyed by the broadcast. In that instance, the defendant source could adopt that pleading in a cross-claim as against the television publisher of the broadcast. In the second alternative, the defendant source faces a difficult choice as to whether to bring the broadcaster into the proceedings. For the reasons I have already identified, in my view in that instance the defendant source must plead the elements of the plaintiff's cause of action for defamation as against the broadcaster, but I do not think it follows that the plaintiff must do the same. For the plaintiff, the only requirement is to plead the elements required to be established in order to recover swelled damages (identified in Bracks v Smyth-Kirk at [127]).
In conclusion, in my view, it is open to a plaintiff to sue only the source and to rely on the broadcast only as to damages, in which case, in my view, it is neither necessary nor helpful to specify the imputations. As I intimated in my earlier judgment, in my view they will necessarily be the same as it is the repetition of the sting of the original publication that founds the claim for an increased award against the source.
In such a case, the defendants may cross-claim against the broadcaster, but in that event the cross-defendant is entitled to have the case pleaded as against it because, as submitted by Mr Richardson, it may have defences available to it which are not available to the source.
For those reasons, the defendants should not have leave to file the proposed amended cross-claim in the form brought forward for argument last Friday, and the defendants' application to have the amended statement of claim struck out on the basis that the re-publication is inadequately pleaded is rejected.
I stand the matter in to the Defamation List on Friday 2 November 2018 for directions.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 21 November 2018