Habib v Radio 2UE Sydney Pty Ltd - [2009] NSWCA 231 - NSWCA 2009 case summary — Zoe

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Habib v Radio 2UE Sydney Pty Ltd

[2009] NSWCA 231

Court of Appeal (NSW)|2009-02-20|Before: Giles JA, McColl JA, Campbell JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2009-02-20

Before

Giles JA, McColl JA, Campbell JA

Source

Original judgment source is linked above.

Judgment (36 paragraphs)

[1]

istatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256 Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635 Bazos and Anor v Doman and Ors [2001] NSWCA 347 Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 Brisbane City Council v Attorney-General (Qld) [1979] AC 411 Broxton v McClelland and Another [1995] EMLR 485 Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 Burtonshaw v BBC (1978) NLJ 483 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1988) 193 CLR 519 Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21; (1988) 164 CLR 502 Cleary v Jeans [2006] NSWCA 9; (2006) 65 NSWLR 355 Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Cutler v McPhail [1962] 2 QB 292 David Syme & Co Ltd v Grey (1992) 38 FCR 303 David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Dow Jones & Co Inc v Jameel [2005] EWCA Civ 75; [2005] QB 946 Dow Jones v Gutnick [2002] HCA 56; (2002) 210 CLR 575 Emmens v Pottle (1885) 16 QBD 354 Gill, Herron and Gardiner v Walton (1991) 25 NSWLR 190 Goldsmith v Sperrings [1977] 1 WLR 478 Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 Gorton v Australian Broadcasting Commission (1973) 22 FLR 181 Griffith v Australian Broadcasting Corporation [2003] NSWSC 298 Habib v Nationwide News Pty Ltd [2007] HCATrans 802 Habib v Nationwide News Pty Ltd [2007] NSWCA 91 Habib v Radio 2UE Pty Ltd [2008] NSWDC 59 Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 Harding v Bourke [2000] NSWCA 60; (2000) 48 NSWLR 598 Harris v 718932 Pty Ltd [2000] NSWSC 784 Harris v 718932 Pty Ltd [2003] NSWCA 38; (2003) 56 NSWLR 276 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Henderson v Henderson (1843) 3 Hare 100; [1843-60] ER 313 Howe & Co v Burden [2004] EWHC 196 (QB) Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69 Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 James Hardie and Co v Seltsam Pty Ltd [1998] HCA 78; 196 CLR 53 Jamieson & Brugmans v R [1993] HCA 48; (1993) 177 CLR 574 John Fairfax Publications Pty Limited v Obeid [2005] NSWCA 60; (2005) 64 NSWLR 485 John Fairfax Publications Pty Limited v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291 Johnson v Gore Wood & Co (a firm) [2000] UKHL 65; [2002] 2 AC 1 Kuligowski v MetroBus [2004] HCA 34; 220 CLR 363 Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2008] NSWSC 185; (2008) 72 NSWLR 160 Lange v Australian Broadcasting Corp (Supreme Court of New South Wales, Levine J, 6 September 1996, unreported, BC9604439) Ling v Commonwealth (1996) 68 FCR 180 Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 Maple v David Syme [1975] 1 NSWLR 97 McHenry v Lewis (1883) 22 Ch 397 McManus v Beckham [2002] 4 All ER 497; [2002] 1 WLR 2982 Meckiff v Simpson [1968] VR 62 Moore & Ors v Inglis (1976) 50 ALJR 589 (at 593) Nationwide News P/L v Heggie [2001] NSWCA 257 North West Water Ltd v Binnie & Partners [1990] 3 All ER 547 Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 PNJ v R [2009] HCA 6; (2009) 83 ALJR 384 Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589 R v Carroll [2002] HCA 55; (2002) 213 CLR 635 R v Edwards [2009] HCA 20; (2009) 83 ALJR 717 R v Humphrys [1977] AC 1 R v O'Halloran (2000) 159 FLR 260 Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271 Ratcliffe v Evans [1892] 2 QB 524 Re Luck [2003] HCA 70; (2003) 78 ALJR 177 Re Thomas Christy Ltd (in liq) [1994] 2 BCLC 527 Reichel v Magrath (1889) 14 App Cas 665 Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198 Rogers v R [1994] HCA 42; (1994) 181 CLR 251 Schellenberg v BBC [2000] EMLR 296. Sims v Wran [1984] 1 NSWLR 317 Smith v Streatfeild [1913] 3 KB 764 South Australian Housing Trust v State Government Insurance Commission (1989) 51 SASR 1 Spalla v St George Finance Ltd (No 6) [2004] FCA 1699 Speight v Gosnay (1891) 60 LJQB 231 State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Tort Rep 81-423 State of Queensland v JL Holdings Pty Limited [1997] HCA 1; (1997) 189 CLR 146 Tang Man Sit v Capacious Investments Ltd [1996] AC 514 The Age Corporation v Beran [2005] NSWCA 289 Thoday v Thoday (1964) P 181 Thompson v Australian Capital Television Pty Ltd and Others [1996] HCA 38; (1996) 186 CLR 574 Thomson v Lambert [1938] 2 DLR 545 Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 Truth (NZ) Ltd v Holloway [1960] 1 WLR 997 Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 Wallis v Valentine [2002] EWCA Civ 1034 Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 Ward v Weeks (1830) 7 Bing 211 Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331 White v Overland [2001] FCA 1333 Williams v Hunt [1905] 1 KB 512 Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 Zunter v John Fairfax Publications Pty Ltd [2005] NSWSC 119; (2005) 62 NSWLR 594 Texts Cited: A M Dugdale, M Jones and M Simpson, Clerk & Lindsell on Torts, 19th ed (2006) Halsbury's Laws of England, 2nd ed, vol 13 (1934) K R Handley, "Anshun Today" (1997) 71 ALJ 934 P Milmo and W V H Rogers, Gatley on Libel and Slander, 11th ed (2008) Sweet & Maxwell New South Wales Law Reform Commission, Defamation (1971) R O'Sullivan and R Brown, Gatley on Libel and Slander, 4th ed (1953) Sweet & Maxwell G Spencer Bower, A K Turner and K R Handley, The Doctrine of Res Judicata, 3rd ed (1996) Butterworths T Starkie, A Treatise on the Law of Slander and Libel, 1st ed, vol 2 (1830) T K Tobin and M G Sexton, Australian Defamation Law and Practice, LexisNexis, Butterworths (2003) Glanville L Williams, Joint Torts and Contributory Negligence, (1951) Stevens & Sons Limited Category: Principal judgment Parties: Mamdouh Habib - Appellant Radio 2UE Sydney Pty Ltd - First Respondent Macquarie Radio Network Network Ltd - Second Respondent Representation: Counsel: C A Evatt with Mr R K M Rasmussen for the Appellant G O'L Reynolds SC with Mr M G Lynch for the Respondents

[4]

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, Mamdouh Habib, was unsuccessful in the Supreme Court in a trial pursuant to s 7A of the Defamation Act 1974 (NSW) against Nationwide News Pty Ltd ("Nationwide"), in respect of a Daily Telegraph article it published. The jury found neither of the imputations pleaded in the Supreme Court proceedings (the "original imputations") was carried by the article. On the same day the Daily Telegraph article was published, three radio broadcasts were transmitted, each of which referred in varying degrees to the original article. The appellant also pleaded in the Supreme Court proceedings that Nationwide had "caused [the broadcasts] to be published" and that each radio broadcast conveyed the original imputations. At the s 7A hearing, the appellant's counsel informed the trial judge the radio broadcasts were "republication" so the only issue for the jury was the newspaper article. Counsel for Nationwide agreed. The appellant appealed unsuccessfully from the jury's verdict. In June 2006, he commenced defamation proceedings in the District Court against the respondents, Radio 2UE Sydney Pty Ltd and Macquarie Radio Network Ltd, the owners of the two radio stations on which the three radio broadcasts were transmitted. In those proceedings, he pleaded that the radio broadcasts carried the original imputations and additional imputations. In March 2008, a consent judgment for Nationwide was entered in the Supreme Court proceedings in respect of "each pleaded imputation". Pursuant to a notice of motion filed by the respondents, the primary judge struck out and dismissed the District Court proceedings as an abuse of process and on the grounds of Anshun estoppel because of the way the applicant conducted his case against Nationwide in the Supreme Court. The appellant sought leave to appeal. On appeal, the issues were: (1) the nature of the appellant's claim in respect of the radio broadcasts in the Supreme Court proceedings; (2) the effect of the consent judgment in the Supreme Court proceedings; (3) whether the appellant was seeking, by changing the form of the proceedings, to litigate the same case in the District Court proceedings on which he failed in the Supreme Court proceedings; (4) whether the District Court proceedings were an abuse of process by virtue of Anshun estoppel; (5) whether the District Court proceedings were an abuse of process because of the application of principles for the efficient disposition of litigation reflected in ss 56 - 59 of the Civil Procedure Act 2005 and s 3(d) of the Defamation Act 1974 (NSW); (6) whether the District Court proceedings were an abuse of process because, by virtue of the jury verdict in the Supreme Court proceedings their right to seek contribution from Nationwide pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) was prejudiced. Held, granting leave to appeal and allowing the appeal (per McColl JA, Giles and Campbell JJA agreeing) In relation to (1) 1 The primary judge erred in characterising the appellant's case in the Supreme Court proceedings against Nationwide as original publisher of the radio broadcasts and in concluding that the Supreme Court proceedings involved the determination on the merits of the question whether the original imputations were carried by the radio broadcasts: (at [166], [178], [180]-[182]). 2 The appellant sued Nationwide in the Supreme Court proceedings as original publisher of the original imputations in the Daily Telegraph article but not as original publisher of the radio broadcasts. The case he made in the Supreme Court proceedings in respect of the radio broadcasts was part of his damages claim in respect of the publication of the Daily Telegraph article and depended on him establishing that the radio broadcasts carried the original imputations and that their publication on the radio broadcasts was the natural and probable consequence of the original publication: (at [171]-[176]). Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331 distinguished Speight v Gosnay (1891) 60 LJQB 231; Cutler v McPhail [1962] 2 QB 292 applied 3 In a republication as damages case the issue of liability for the republication (including the meaning of the alleged republication) forms part of the issues the judge determines pursuant to s 7A(4)(b) of the Defamation Act 1974 (NSW): (at [118], [145]). Griffith v Australian Broadcasting Corporation [2003] NSWSC 298; Zunter v John Fairfax Publications Pty Ltd [2005] NSWSC 119; (2005) 62 NSWLR 594 applied T K Tobin and M G Sexton , Australian Defamation Law and Practice, LexisNexis, Butterworths (2003) (at [25,123]) referred to 4 The principle that in circumstances of multiple publication of defamatory matter, a person defamed has a "complete remedy" in one proceeding and it is an abuse of process to divide the remedy by bringing subsequent proceedings applies where the plaintiff seeks to sue the "same defendant" being those principally responsible for publishing the same publication: (at [141]). Williams v Hunt [1905] 1 KB 512; Thomson v Lambert [1938] 2 DLR 545; Maple v David Syme [1975] 1 NSWLR 97; Meckiff v Simpson [1968] VR 62; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404; Lange v Australian Broadcasting Corp (Supreme Court of New South Wales, Levine J, 6 September 1996, unreported, BC9604439); Harris v 718932 Pty Ltd [2003] NSWCA 38; (2003) 56 NSWLR 276 considered McHenry v Lewis (1883) 22 Ch 397; Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 referred to 5 Accordingly, the only issue for the jury at the s 7A hearing was the s 7A(3) issue as to whether the Daily Telegraph article carried the original imputations. Having regard to the structure of the Defamation Act 1974 Act, and the nature of the s 7A hearing, that was the only pleaded issue which had been "tried and found" or "actually litigated and determined": (at [179]). Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446; Kuligowski v MetroBus [2004] HCA 34; 220 CLR 363 applied . 6 As the appellant only relied upon the radio broadcasts as against Nationwide as a component of his damages claim, once the jury found his causes of action founded on the publication of the original imputations failed, he had no claim for damages. There was no hearing on the merits, or argument, on the republication as damages claims. Nor could the claim have been brought forward in the Anshun sense: (at [181]). Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589 referred to In relation to (2) 7 Orders made by consent may create an estoppel as between parties and their privies and may be considered for the purpose of determining whether subsequent proceedings would be an abuse of process because that would lead to conflicting judgments. However they do so "only as to those matters which are necessarily decided": (at [186]). Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69 applied Abigroup Contractors Pty Ltd v ABB Service Pty Ltd (formerly ABB Engineering Construction Pty Ltd) [2004] NSWCA 181; Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2008] NSWSC 185; (2008) 72 NSWLR 160 referred to 8 While the judgment entered in the Supreme Court proceedings gave a verdict for Nationwide "in respect of each pleaded imputation", it was only in respect of the imputations the jury had rejected, the issue of whether they had been republished in the radio broadcasts never having been determined, or arisen for determination. The judgment for Nationwide thus did not preclude the appellant's proceedings against the respondents: (at [187]. In relation to (3) 9 The District Court proceedings were brought against the respondents as original publishers of each radio broadcast (at [127]-[128], [191]) Harris v 718932 Pty Ltd [2003] NSWCA 38; (2003) 56 NSWLR 276; Nationwide News P/L v Heggie [2001] NSWCA 257 applied Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 referred to 10 While there were similarities between the Daily Telegraph article and the radio broadcasts, they were not "the same defamatory matter". Each radio commentator embellished the original article with their own statements. Nor were the District Court proceedings brought in relation to imputations "largely identical" to those in the Daily Telegraph article, which the jury had found not to be conveyed: (at [196]-[198], [206]). Lange v Australian Broadcasting Corp (Supreme Court of New South Wales, Levine J, 6 September 1996, unreported, BC9604439); John Fairfax Publications Pty Limited v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 referred to 11 The primary judge erred in concluding that the appellant was seeking to re-litigate "the same question" or the "same case" on which he failed in the Supreme Court proceedings in the sense required to establish Anshun or Reichel estoppel. The issue whether the respondents were liable as publisher of the radio broadcasts for either the original or the additional imputations had never been "fully litigated", "properly argued" or "lost": (at [199]). Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404; State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Tort Rep ¶81-423; R v O'Halloran (2000) 159 FLR 260; Spalla v St George Finance Ltd (No 6) [2004] FCA 1699 applied Reichel v Magrath (1889) 14 App Cas 665; Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589 considered Thomson v Lambert [1938] 2 DLR 545 distinguished In relation to (4) 12 It was not unreasonable, in the Anshun sense, for the appellant not to have joined the respondents as defendants in the Supreme Court proceedings. He had distinct defamation claims against Nationwide and the respondents in respect of different publications: (at [209]). 13 An outcome favourable to the appellant will not lead to the existence of contradictory judgments: (at [208]). In relation to (5) 14 Permitting the District Court proceedings to continue will not entail duplication of court time, as no court has previously considered whether any imputation arose from the radio broadcasts: (at [210]). 15 No issue arises which would call for the District Court proceedings to be struck out for efficiency reasons, particularly where s 48 of the 1974 Act expressly contemplates more than one set of proceedings against different defendants, even in respect of matter "to the same purport or effect" as that in respect of which damages have already been recovered: (at [210]). Dennis v Australian Broadcasting Corporation [2008] NSWCA 37; Schellenberg v BBC [2000] EMLR 296 referred to In relation to (6) 16 The fact the respondents may have lost a possible claim for contribution against Nationwide, the extent of recovery under which turns on the justice and equity of the circumstances, does not create the exceptional or extreme circumstance which would justify shutting out the appellant's claims in the District Court proceedings: (at [205]). Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197; Broxton v McClelland and Another[1995] EMLR 485 referred to 17 Although the jury verdict that Nationwide was not liable in respect of the original imputations may bar a contribution claim by the respondents against Nationwide in respect of the damage caused by the publication of those imputations by the radio broadcasts, the same conclusion may not follow for the additional imputations pleaded in relation to the radio broadcasts: (at [203]). 18 In a balancing exercise between the appellant's right to vindicate his reputation and the respondents' to seek contribution from Nationwide, the former should be favoured: (at [204]). Orders Proceedings CA 40244/08

Direct that the time to file the summons for leave to appeal be extended to 13 August 2008.
Grant leave to appeal.
Direct that the draft notice of appeal in the White Book stand as the notice of appeal in proceedings CA 40113/08. Proceedings CA 40113/08
Appeal allowed.
Set aside the order made on 16 April 2008 striking out and dismissing the District Court proceedings.
Dismiss the respondents' Notice of Motion dated 16 August 2006.
Respondents to pay the appellant's costs of the hearing of the respondents' Notice of Motion dated 16 August 2006.
Respondents to pay the appellant's costs of the application for leave to appeal and of the appeal.

[5]

Judgment

GILES JA: As explained by McColl JA, with whose reasons I agree, the trial judge misapprehended what was determined in the Supreme Court proceedings. In those proceedings the republication of the radio broadcasts went to damages, as was plainly agreed by counsel before Kirby J. The judgment for the defendant did not preclude the appellant's proceedings against the respondents. Nor, as also explained by her Honour, was prosecuting otherwise viable causes of action against the respondents in the District Court an abuse of process. The trial judge was in error, and the appeal should be upheld.
I agree with the orders proposed by McColl JA.
McCOLL JA: On 21 June 2006 the applicant, Mamdouh Habib, commenced proceedings in the District Court of New South Wales seeking to recover damages for defamation against the first respondent, Radio 2UE Sydney Pty Ltd, and the second respondent, Macquarie Radio Network Ltd, in relation to three broadcasts on the respondents' radio stations.
All three broadcasts were transmitted on 18 August 2005. The first broadcast was on the "Ray Hadley Morning Show" on radio station 2GB at 10.19am, the second on the "John Laws Morning Show" on radio station 2UE at 10.33am and the third on the "Steve Price Afternoon Programme", also on radio station 2UE at 4.07pm. Each broadcast referred to an article in the Daily Telegraph published on the same day entitled "A Stretch but Habib Wants His Pension". The first and second respondents owned radio stations 2UE and 2GB respectively.
Prior to commencing the District Court proceedings, the applicant had brought proceedings in the Supreme Court against Nationwide News Pty Ltd ("Nationwide"), the publisher of the Daily Telegraph article. The respondents were not parties to the Supreme Court proceedings. In his amended statement of claim in those proceedings, the applicant also claimed damages for the three broadcasts, on the basis that Nationwide had "caused [the broadcasts] to be published".
All publications having occurred on 18 August 2005, any defamation proceedings to which they were said to give rise were governed the Defamation Act 1974 (NSW) (the "1974 Act"), since repealed and, from 1 January 2006, replaced by the Defamation Act 2005 (NSW).
In a trial conducted in May 2006 pursuant to s 7A of the 1974 Act before Kirby J and a jury, the jury found that the Daily Telegraph article did not convey the pleaded imputations.
The applicant commenced the District Court proceedings after the jury verdict in the Supreme Court proceedings. On 16 April 2008, Gibson DCJ struck out and dismissed the District Court proceedings as an abuse of process and on the grounds of Anshun estoppel because of the way the applicant conducted his case against Nationwide in the Supreme Court. Her Honour also found that the applicant's proceedings in the District Court amounted to an abuse of process by reason of the provisions of the 1974 Act and especially s 9(6): Habib v Radio 2UE Pty Ltd [2008] NSWDC 59.
The applicant seeks leave to appeal and, if leave be granted, to appeal from Gibson DCJ's decision. The application for leave to appeal and the argument as on appeal were heard concurrently so that, if leave to appeal was granted, there would be no further argument.
The matter was originally commenced in the Court on the basis the appellant had an appeal as of right pursuant to s 127(3) of the District Court Act 1973 (NSW). However the Court drew the appellant's attention to the fact that he needed leave to appeal as the order striking out the District Court proceedings was interlocutory: s 101(2)(e), Supreme Court Act 1970 (NSW); Re Luck [2003] HCA 70; (2003) 78 ALJR 177. Accordingly on 13 August 2008 he filed an application for extension of time with his application for leave to appeal. The respondents did not consent to the application to extend time to seek leave to appeal but did not assert they were prejudiced if leave was granted.
I am of the view that the case raises issues of importance which warrant extending the time in which the appellant can seek leave to appeal and granting leave to appeal. I shall refer to the applicant as the appellant hereafter.
For the following reasons, I am of the view that the appeal should be allowed, the decision of the primary judge set aside and the matter remitted to the District Court for hearing.

[6]

The Supreme Court proceedings

In his Supreme Court amended statement of claim, the appellant alleged that Nationwide published the Daily Telegraph article and that the article conveyed the following imputations: (a) the plaintiff is attempting to deceive Centrelink by seeking a disability pension when he is not disabled; (b) the plaintiff is the sort of person who will try to live off Australian taxpayers even though he is fit to work.
Paragraphs 4, 6 and 8 of the amended statement of claim pleaded, additionally, that Nationwide had "caused to be published" each radio broadcast on the John Laws programme (2UE), the Steve Price programme (2UE) and the Radio Hadley Programme (2GB). The amended statement of claim pleaded that each radio broadcast conveyed the same two defamatory imputations pleaded for the Daily Telegraph article.
The particulars of publication stated: "(a) The article in 'The Daily Telegraph' of 18 August 2005 referred to in paragraph 2 was printed, published, distributed, circulated and sold by the Defendant, its servants and agents in the State of New South Wales and throughout the Commonwealth of Australia. (b) The article in 'The Daily Telegraph' referred to in paragraph 2 was of a sensational nature making allegations as it did against the Plaintiff who at that time was in receipt of widespread media publicity. The Defendant knew that the article would be likely to be read by radio commentators later on the day of publication . The article was indeed read by John Laws, Steve Price and Ray Hadley. These commentators repeated the essence of what was contained in [the Daily Telegraph article] and the imputations ." (emphasis added)
The amended statement of claim was unverified, as permitted by the rules: Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 14.22.
Nationwide's defence denied all the allegations in the amended statement of claim.
The s 7A trial took place before Kirby J on 23 and 24 May 2006. At that trial, only the Daily Telegraph article was put to the jury to determine whether it, as the matter complained of, conveyed the imputations of which the appellant complained, and, if it did, whether any imputation conveyed was defamatory: s 7A(3). This appears to have been because the parties accepted that the radio broadcasts were only relevant to the issue of Nationwide's responsibility for the republication of the imputations in those broadcasts. That this was the parties approach can be gleaned from a note made by Kirby J's associate, recording the response from Mr C Evatt, counsel for the appellant, to a query by his Honour about whether a cassette player would be required to play the radio broadcasts. That note states: "EVATT: Your Honour's Associate asked whether we would require a radio. I said it would not be a radio but a cassette player, however we will need neither because the three broadcasts are republication, so the issue for the jury is only the Daily Telegrapharticle." to which proposition Mr G O'L Reynolds of Senior Counsel, who appeared for Nationwide at the s 7A hearing, agreed. Both parties appear to have been proceeding in this respect on the basis that issues of a republication were not matters for the jury: Griffith v Australian Broadcasting Corporation [2003] NSWSC 298.
The jury answered "no" to the questions about whether the imputations were conveyed by Nationwide's publication. Accordingly, Kirby J ordered a verdict in respect of each imputation and judgment for Nationwide in the action with costs. He stood the issue of republication over for further hearing. The appellant appealed unsuccessfully from the jury's verdict: Habib v Nationwide News Pty Ltd [2007] NSWCA 91 (Ipp and Basten JJA, Handley JA dissenting) and was unsuccessful in an application for special leave to appeal to the High Court: Habib v Nationwide News Pty Ltd [2007] HCATrans 802.
Kirby J's orders were not entered until 19 March 2008 apparently for the reasons which appear below and, in due course, the republication hearing was vacated. Gibson DCJ (at [24]) noted that these events occurred because the appellant took the following steps: "(a) he appealed the jury decision (unsuccessfully: Habib v Nationwide News Pty Ltd [2007] NSWCA 91) by filing a Notice of Appeal in June 2006 and when he failed in this appeal, unsuccessfully sought leave to appeal to the High Court; (b) he commenced proceedings in the District Court on 21 June 2006; and (c) on 20 September 2006 his solicitors wrote to the solicitors for the [sic, as in original - presumably Nationwide] stating the Plaintiff discontinued all three republication counts. The plaintiff and defendant have now on 6 March 2008 signed a consent judgment for the defendant with costs, terminating the Supreme Court proceedings."
The judgment which was entered set out the formal details of the Case Number, the title of the proceedings, then stated: "DATE OF JUDGMENT/ORDER Date made or given 24 May 2006 Date entered 19 MAR 2008 TERMS OF JUDMENT/ORDER 1 Verdict for the defendant in respect of each pleaded imputation. 2 Judgment Costs for the defendant in the action, with costs ". (emphasis added) The Court seal of the Deputy Registrar was subscribed to the document against the date "19 MAR 2008".
The words I have italicised in order 2 were handwritten onto the document. It appears the word "Costs" in order 2 was struck through, presumably with the intention it be replaced by the word "Judgment", whether or not that is so is obscured by another court stamp, but the order would only make sense if that were so, as the costs consequences of the judgment were also appended at the end of order 2. It is also possible that the word "pleaded" in order 1 was struck through; again a court stamp is superimposed at that point. Neither party suggested anything turned on whether or not "pleaded" had been struck out.

[7]

The District Court proceedings

In the District Court statement of claim, the appellant pleaded the same two imputations against each respondent as had been pleaded in the Supreme Court proceedings, as well as additional imputations.
The appellant pleaded the following imputations in respect of the John Laws programme: "3(a) The Plaintiff is attempting to deceive Centrelink by seeking a disability pension when he is not disabled. 3(b) The Plaintiff is the sort of person who will try to live off Australian taxpayers even though he is fit to work. 3(c) The Plaintiff is a bludger. 3(d) The Plaintiff is dishonest. 3(e) The Plaintiff is dishonest because he is trying to get himself a disability pension even though he is so fit he can run in the City to Surf and beat 40,000 people. 3(f) The Plaintiff is knowingly bringing a false claim for Centrelink benefits. 3(g) The Plaintiff falsely claimed he was depressed. 3(h) The Plaintiff falsely claims he was physically tortured by US soldiers during his time at Camp X-ray. 3 (i) The Plaintiff is a moron. 3(j) The Plaintiff should be in gaol. 3(k) The Plaintiff could be an insider working for al Qaeda. 3(l) The Plaintiff was doing something shady when he was in Afghanistan which he should not have done. 3(m) The Plaintiff is the sort of person who will not tell the truth. 3(n) The Plaintiff should be condemned for not telling the truth. 3(o) The Plaintiff should be condemned for seeking a disability allowance. 3(p) The Plaintiff may have received money from al Qaeda to work as an insider. 3(q) The Plaintiff does not want strict terror laws because he is a suspected terrorist. 3(r) The Plaintiff conducted himself in such manner about being disabled and needing a disability pension that he should be deported."
The imputations pleaded in respect of the Steve Price programme were: "5(a) The Plaintiff is attempting to deceive Centrelink by seeking a disability pension when he is not disabled. 5(b) The Plaintiff is the sort of person who will try to live off Australian taxpayers even though he is fit to work. 5(c) The Plaintiff is a bludger. 5(d) The Plaintiff received a pension when he was not entitled to it. 5(e) The Plaintiff is a leech on Australia. 5(f) The Plaintiff falsely claims he is suffering clinical depression because he was able to run in the City to Surf in fast time. 5(g) The Plaintiff should be condemned for seeking a disability pension."
Finally, the imputations pleaded in respect of the Steve Price programme were: "7(a) The Plaintiff is attempting to deceive Centrelink by seeking a disability pension when he is not disabled. 7(b) The Plaintiff is the sort of person who will try to live off Australian taxpayers even though he is fit to work. 7(c) The Plaintiff is a bludger. 7(d) The Plaintiff demanded access to disability support pension to which he was not entitled. 7(e) The Plaintiff is a grub who does not deserve a disability pension. 7(f) The Plaintiff should be condemned for seeking a disability pension. 7(g) The Plaintiff is an idiot. 7(h) The Plaintiff is dishonest because he is trying to get his hands on a disability pension to which he is not entitled. 7(i) The Plaintiff falsely claims he suffers clinical depression. 7(j) The Plaintiff is trying to live off taxpayers by applying for a disability pension to which he is not entitled. 7(k) The Plaintiff falsely claims he is unfit to work." I shall refer to the imputations pleaded in the Supreme Court proceedings as "the original imputations" and to those not pleaded in the Supreme Court proceedings as "the additional imputations".
On 16 August 2006, the respondents filed a notice of motion in the District Court seeking orders that the proceedings be dismissed pursuant to r 13.4, alternatively r 14.28, of the UCPR on the basis that they were an abuse of process.

[8]

The primary judgment

The respondents contended at trial that the District Court proceedings were an abuse of process, as the primary judge explained (at [27]) substantially for the following reasons: (a) By foregoing any opportunity for a jury hearing in the Supreme Court proceedings, the appellant was limiting his case to damages. As the jury found there were no imputations conveyed by Nationwide, the whole action, including any claim for damages for republication failed; once the jury's verdict was delivered, the Supreme Court was "functus" and Kirby J should not have adjourned the republication issue; (b) the respondents were irreparably prejudiced because the effect of the jury verdict in the Supreme Court proceedings was that they could not seek contribution against Nationwide in the District Court proceedings; (c) by reason of Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589.
Her Honour noted that an argument based on the proposition that commencing the District Court proceedings while the proceedings in the Supreme Court (and an appeal therefrom) were on foot amounted to an incurable abuse of process because the plaintiff had a "complete remedy" in the Supreme Court proceedings appeared to have been abandoned once the consent judgment was entered in the Supreme Court: primary judgment (at 27). The respondents dispute that they abandoned this point, indeed it was their principal argument on appeal, as I shall explain.
The primary judge made a number of findings which appeared to favour the appellant. She held (at [15], [65]) that defendants cannot dictate to a plaintiff who should be sued and that a plaintiff can, subject to statutory restrictions, sue whoever he chooses, for publication or republication: Goldsmith v Sperrings [1977] 1 WLR 478 (at 507) per Bridge LJ. She accepted (at [17]) that the tactics involved in a s 7A trial "are complex", and "[i]t is readily understandable that a plaintiff may prefer to have the jury hear only one address from one defendant rather than three addresses from three separate defendants. She also accepted (at 27) that "if proceedings had wrongly been commenced in [the District Court] while other proceedings were still on foot in another court, and those proceedings were later discontinued or concluded, this cannot render these proceedings so tainted by irregularity as to require their being permanently stayed". She acknowledged (at [53]) that "[t]he unique nature of defamation must be taken into account [and that] [i]t may not be realistic to require a plaintiff who may have been defamed by a number of defendants to sue them all in the one set of proceedings".
The primary judge also referred to two matters which were not the subject of submissions: the discussion in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 "about the statutory duty imposed on courts in civil procedures generally (by the Civil Procedure Act 2005 (NSW) and by the Defamation Act 1974 (NSW) (and 2005) in particular" and the reference to abuse of process in s 9(6) of the 1974 Act: primary judgment (at [31]).
The primary judge first considered how the Supreme Court proceedings were conducted. She noted (at [33]) that the reason the radio broadcasts did not go to the Supreme Court jury was "by agreement of the parties", Kirby J having been told "these publications were not to go to the jury because they were 'republications' ". While she accepted (at [22], [33] - [34]) that the issue of republication was governed by Griffith (a decision which she opined (at [34]) was "open to consideration"), she rejected (at [35]) the proposition, apparently advanced by both the respondents and the appellant, that in the Supreme Court proceedings the appellant was only relying upon the three radio broadcasts as going to damages. Her Honour concluded (at [36], [40]) that: "36. The question before Kirby J, if the jury had found one or both of the imputations conveyed, was whether each of the broadcasts conveying the imputation(s) did so as a natural and probable consequence of the original publication ( Speight v Gosnay (1890) 60 LJQB 231). … 40. The reason these issues were before Kirby J, the s 7A judge, was that his Honour had to deal with the republication issue as part of the s 7A trial. In other words, these republications formed part of the proceedings as to the issue of publication, but in circumstances where the parties had agreed that this part of the publication issue would go to the trial judge and not the jury. If the contents of these publications went only as to damages, then they would have been irrelevant to the proceedings before Kirby J because they would only have formed part of the later trial on liability and damages."
The primary judge then considered the respondents' claims concerning abuse of process. She identified (at [45]) the first issue as whether it was "an abuse of process to bring proceedings over a publication which contain[s] imputations largely identical to those in the article (which the jury found not to be conveyed)". She noted (at [48] - [52]) that similarity between, I assume Nationwide's and the respondents' publications and imputations "even to a high degree" was not, of itself, sufficient to amount to grounds for a stay for abuse of process, referring to The Age Corporation v Beran [2005] NSWCA 289. However, she distinguished in Beran in two respects (at [54]): first, because in Beran there was no republication claim; and secondly, because "the two publications [in Beran] did not refer to each other to the very high degree that occurred here".
The primary judge then considered (at [55]) whether by virtue of the inclusion of the republication pleading in the Supreme Court proceedings or by reason of the "very highly similar nature of the publications", the appellant could not bring the District Court proceedings. She set out (at [56]) the respondents' argument that that the matters raised in the District Court proceedings could, or should, have been raised in the Supreme Court proceedings (for which purposes they referred to Anshun), even though the District Court defendants were not a party: Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 (at 590). They contended that the republication claims were, by agreement, determined in the Supreme Court proceedings on the merits, and secondly that if they were not, then the degree of similarity between the Nationwide and radio publications was such as to give rise to cause of action estoppel: (according to her Honour's note of the argument at [64]), or, it seems issue estoppel because of the need for there to be "an end to litigation". There appears to have been little focus in the respondents' submissions before the primary judge on the requirement for privity of interest to establish cause of action and issue estoppel, matters I address later in these reasons.
In considering this argument the primary judge (at [57]) noted what she described as the following similarities and differences between the Nationwide and radio publications: "(a) the plaintiff pleaded in the Supreme Court that each conveyed identical imputations and while additional imputations have now been pleaded, there is a high overlap between most of these imputations and those unsuccessfully pleaded against the Daily Telegraph ; (b) they were all published over a period of about 12 hours in the one day; (c) the content of the article in the Daily Telegraph is not only specifically and repeatedly referred to in each of the matters complained of, but its contents are summarised. It is the factual material upon which the defendants' comment is based; (d) as to differences, there is a very limited amount of what might be called new material: (i) Annexure B [John Laws broadcast] contains the assertion that the plaintiff said it was not 'their own people' who flew into the World Trade Centre towers, comments on his bad grammar and calls on the Minister for Education to stop the plaintiff speaking in schools; (ii) Annexure C [Steve Price broadcast] refers to him commencing defamation proceedings against newspapers who call him a suburban terrorist; (iii) Annexure D [Ray Hadley broadcast] complains the plaintiff when lecturing to students does not mention the events of September 11."
The respondents also argued that the appellant had waived his right to a jury finding concerning what imputations were conveyed by the radio publications by agreeing that the jury's findings be restricted to the imputations conveyed in the Daily Telegraph article. They argued that as Kirby J could not determine what imputations the radio publications conveyed - because this was the task of the jury (s 7A(3)) - the issue Kirby J would have had to determine was whether Nationwide was liable for the republication of its article: see primary judgment (at [59]).
With respect to the first limb of this argument, her Honour stated (at [61]): "61. In practical terms, the only explanation for the plaintiff agreeing to Kirby J determining the issue of republication was that the plaintiff was treating each of the three radio broadcasts as being republications in the same way that they were treated in Griffiths . In other words, the plaintiff consented to a course of conduct of the trial in the Supreme Court which meant that the plaintiff stood - or fell - by the imputations pleaded as arising in the Daily Telegraph . The jury verdict for the defendant on the Daily Telegraph meant that the same finding had to be made concerning the imputations conveyed by the three radio broadcasts. The failure of these imputations for the [sic, as in original] accordingly means, because of the way the case was conducted in the Supreme Court, that these imputations also failed on the republication argument, to put it simply."
Her Honour also concluded, on what she describes as the respondents' "subordinate Anshun submission" (at [63]) that the consent judgment in favour of Nationwide for all pleaded imputations confirmed her view that the appellant conducted the Supreme Court proceedings on the basis that the imputations conveyed in the radio broadcasts were the same as those conveyed by the Daily Telegraph.
The primary judge appeared at first to have rejected the respondents' Anshun estoppel argument, as she said: "65. In my view, this argument fails to appreciate the unique nature of defamation. A plaintiff can, subject to statutory restrictions, sue whoever he chooses, for publication or republication, for the reasons explained in Goldsmith v Sperrings(supra). The plaintiff did not have to commence proceedings in the Supreme Court for all the publications. He could have commenced proceedings in the Supreme Court against Nationwide News Pty Limited and not included these other causes of action at all. He was not obliged to litigate all these publications in the same action. When he lost those proceedings, he could have, as Dr Beran did, commenced proceedings in the same or another court, or even another State, subject to challenges based on provisions in the Defamation Act 1974 (NSW). Consequently this challenge must fail."
The primary judge then considered whether provisions in the 1974 Act which in her view prevented collateral use of defamation proceedings would warrant striking out the proceedings. She expressed the view (at [70] - [73]) that legislative concern regarding potential abuse of process through the institution of collateral defamation proceedings was reflected in a number of provisions of the 1974 Act, namely ss 3(d), 7A, 9(3), 9(6)(b), 48 and 48A, as well as in the New South Wales Law Reform Commission's report on the 1974 Act (New South Wales, Law Reform Commission, Defamation (1971)) and the Second Reading Speech to the Bill: New South Wales Legislative Assembly, Parliamentary Debates, (Hansard), 27 February 1974 (at 848 - 850).
The primary judge referred to s 9(6)(b) which states that s 9(3) does not affect the powers of the court in the case of "vexatious proceedings or abuse of process" and observed (at [74]): "… the language of s 9(6) does not appear to me to be restricted to giving rights to parties who have already been sued. It must also apply to parties who were not joined in the original litigation, if those circumstances, while falling short of res judicata (as the Law Reform Commission note at paragraph 51) are so manifestly unjust as to amount to abuse of process."
Her Honour concluded (at [76]): "The plaintiff in these proceedings has lost his cause of action against Nationwide News Pty Limited over the publication which is the lion's share of each of these matters complained of. Each of these matters complained of was published within hours of the article in the Daily Telegraph and each of them repeats and endorses what was said in that publication. The fundamental purpose of civil defamation proceedings is to vindicate and protect the reputation of the person defamed ( Packer v Meagher [1984] 3 NSWLR 486 at 492E). To unscramble the omelette and award the plaintiff damages for the publication of the same or similar imputations, published on the same day as the publication which a jury held did not defame him, is an exercise in absurdity. It is particularly so in circumstances where the plaintiff was content to regard these additional publications as being publications for which the Daily Telegraph was liable." Her Honour's statement that the jury had held the Nationwide imputations did not defame the appellant was not correct. The jury found that those imputations were not conveyed and, accordingly, did not consider the question whether, if they had been conveyed, they defamed the appellant.
The primary judge (at [77]) noted that she had found that the way the appellant conducted his case the Supreme Court proceedings amounted to an Anshun estoppel (a statement which is difficult to understand in the light of her statement at [65]), and added: "Whether or not the plaintiff waived his right to a separate jury verdict, or entered into a consent judgment which amounts to an Anshun estoppel, the plaintiff has brought proceedings in this court which, by reason of the provisions in the Defamation Act1974 referred to above (and especially s 9(6)) amount, separately, to abuse of process".
The primary judgment is diffuse, and, with respect, does not readily reveal the basis upon which the primary judge concluded that District Court proceedings were an abuse of process such that they should be struck out. The primary judge said (at [30]) that "[s]ince both parties appear to anticipate developing their arguments in more detail on appeal, I have dealt with their arguments in a similarly brief fashion". It is regrettable that both the parties, and her Honour, appear to have dealt with the matter as if it was a dress rehearsal for appeal. It is inappropriate for counsel not to present argument fully at trial. The duty of parties to raise all arguments, whether of fact or law, at a trial level and the perils to which failure to comply with that duty is well known: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1. It is essential to the proper administration of justice that a judge's reasons make clear the basis for the judge's decision. Reviewing the primary judgment in this case was not assisted by the difficulty in discerning the reasons for her Honour's conclusions.
However, in summary, it appears that the gist of her Honour's reasons for concluding the District Court proceedings were an abuse of process was: (a) the appellant was not relying upon the republication of the original imputations on the radio broadcasts as going only to damages (at [35]); (b) by agreeing to Kirby J determining the issue of republication, the appellant consented to the jury verdict in respect of the Daily Telegraph article being taken to have determined whether or not the imputations pleaded in respect of the radio broadcasts were carried (see [35], [40], [61]); (c) The jury verdict meant that the original imputations were not conveyed both by Daily Telegraph article and by the radio broadcasts; and that constituted, in substance, a hearing on the merits of the question whether the original imputations were conveyed by the radio broadcasts (see [61], [63], [64]); (d) the District Court proceedings were brought in relation to imputations "largely identical" to those in the Daily Telegraph article, which the jury had found not to be conveyed (at [45]); (e) there was "a high overlap between most of [the additional imputations] and those unsuccessfully pleaded against the Daily Telegraph " (at 57); (f) there was a high degree of similarity between the Daily Telegraph article and the radio broadcasts and a limited amount of "new material" in the latter (57 - (d)); (g) the appellant had lost the Nationwide proceedings in respect of publications which were "the lion's share" of each of the radio broadcasts; it would be manifestly unjust to award the appellant in the District Court proceedings damages for the publication of the same or similar imputations published on the same day as a publication which a jury had held did not defame him, particularly in circumstances where the appellant "was content to regard these additional publications as being publications for which the Daily Telegraph was liable" (at [76], [77]).
Following the hearing of the appeal, the respondents provided a Notice of Contention to the Court. That document arguably went beyond the argument advanced orally. It also, to some extent, raised points which the primary judge had resolved in the respondents' favour. It is unnecessary to set out its terms in detail. These reasons deal with all the points it raised.

[10]

Submissions

Mr C A Evatt, who appeared with Mr R Rasmussen for the appellant on the strike-out motion and on appeal, submitted that the primary judge's reasons did not disclose why she concluded there was an Anshun estoppel or an abuse. He argued that her Honour's conclusion that the District Court proceedings were an abuse of process was based on an inaccurate characterisation of the way the appellant's case had been run in the Supreme Court proceedings, and of the law in relation to cumulative remedies.
Mr Evatt took issue with her Honour's findings (at [61] of the primary judgment) that the only explanation for the appellant agreeing to remove the issue of republication from the jury was that the appellant was consenting to a course of conduct in which his case on all four publications relied on the imputations pleaded as arising in the Daily Telegraph article. Rather, Mr Evatt submitted that the parties were bound by Griffith to remove the republication issue from the jury. Therefore he contended the primary judge's conclusion that the reason that the three radio broadcasts did not go to the Supreme Court jury was "by the agreement of the parties" was incorrect. He argued the appellant did not waive his right to a separate jury verdict in respect of the radio broadcasts because republication was not for the jury.
Mr Evatt submitted that even if the appellant had succeeded in the Supreme Court proceedings in establishing that the imputations were conveyed by the Daily Telegraph article, he may not have succeeded in establishing that the radio broadcasts were republications because of the altered form and different words used in those broadcasts. Alternatively, he contended that even if the appellant had succeeded entirely in the Supreme Court proceedings, including establishing the republication issue, and been awarded damages, he would still have been entitled to bring the District Court proceedings, not only for the additional imputations, but also in respect of the two original imputations. The original imputations, he contended, could have been taken into account by a judge determining damages, had the respondents relied upon s 48 of the 1974 Act to claim mitigation of damages on the basis that the appellant had already either recovered damages or brought proceedings for damages in respect of those imputations.
Mr Evatt further submitted that as a matter of logic, the jury's verdict in the s 7A trial that the Daily Telegraph article did not convey the pleaded imputations meant that it could be hardly argued that the Daily Telegraph article caused the same imputations to be republished in the three radio broadcasts. Thus, while the appellant had failed to establish in the Supreme Court proceedings that either of the two imputations alleged was conveyed by the Daily Telegraph, Mr Evatt contended this did not mean that the imputations were not conveyed by the radio broadcasts, but merely that they were not conveyed by way of republication in the radio broadcasts.
Mr Evatt argued that the primary judge erred (at [76]) in concluding that allowing the appellant to pursue the District Court proceedings would be "an exercise in absurdity". He contended her Honour had failed to apply the principle that a plaintiff is not required to choose between his or her remedies, and may pursue one or the other, or both, as he or she wishes: Harris v 718932 Pty Ltd [2003] NSWCA 38; (2003) 56 NSWLR 276 per Handley JA (at [24]).
Next, Mr Evatt took issue with the primary judge's finding (at [74]) that even if the circumstances fell short of res judicata, the proceedings could be "so manifestly unjust as to amount to abuse of process". He contended there could be no injustice to the respondents in the circumstances and that nothing in the Supreme Court proceedings affected them "one way or the other". He made this submission in respect to the District Court proceedings in their entirety, but emphasised that many of the imputations pleaded against the respondents were substantially different to those pleaded against Nationwide and each created a different cause of action.
Mr Evatt argued that the primary judge erred in distinguishing Beran. He contended first, that the dissimilarity between the Nationwide and radio publications was greater than the dissimilarity between the two publications in Beran. Secondly, unlike Beran, he pointed out there had been no determination by a judge or jury on the radio broadcasts. Even if there had been such a finding in relation to the original imputations, it could not apply to the additional imputations.
Mr Evatt also submitted that Anshun estoppel could not prevent the appellant from commencing proceedings against parties who were not joined in the Supreme Court except in limited circumstances where an extended res judicata principle applied, such as in the case of joint tortfeasors.
Finally, Mr Evatt submitted that s 9(6)(b) of the 1974 Act "on its own" could not entitle the primary judge to find an abuse of process. He argued that the verdict in the Supreme Court proceedings did not mean there was an estoppel in respect of any imputations published by the respondents, merely that the republication counts failed as the radio broadcasts could not have republished imputations the jury found were not conveyed by the Daily Telegraph article.
Mr Reynolds, who appeared with Mr M G Lynch for the respondents on appeal but not at trial, contended that the Supreme Court and District Court proceedings were an abuse of process in the light of what he described as the following "working proposition": where several persons are responsible for the publication of identical material, and an action is brought against one of the publishers which proceeds to judgment or is settled, then any further action against other persons responsible for the publication is an abuse of process.
Mr Reynolds contended his working proposition was effectively the basis on which the primary judge had reached her decision, but ultimately accepted that he was proceeding with a notional notice of contention argument and agreed the respondents should file a notice of contention to accord with his working proposition.
Mr Reynolds submitted that his working proposition, which he accepted was not immutable, was supported in particular, by Thomson v Lambert [1938] 2 DLR 545, which he noted was referred to with approval in Harris v 718932 Pty Ltd [2000] NSWSC 784 (at [21]), Dow Jones v Gutnick [2002] HCA 56; (2002) 210 CLR 575 (at [36]) and Meckiff v Simpson (1968) VR 62 (at 65).
Mr Reynolds argued that the first limb of his working proposition was established by the fact that the appellant sued Nationwide in the Supreme Court proceedings as having published both the Daily Telegraph article and the radio broadcasts, the latter being identical with the radio broadcasts in respect of which he sought to sue in the District Court proceedings. He relied on the fact that the Supreme Court amended statement of claim pleaded that Nationwide had "caused to be published" each radio broadcast, that being, he contended, the language of publication rather than republication: Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331 (at 364) per Isaacs J; cf Speight v Gosnay (1891) 60 LJQB 231. He elaborated upon this proposition by saying that the case pleaded against Nationwide, insofar as the radio broadcasts were concerned, was, analogically, a form of accessorial liability for the publications by the respondents.
Mr Reynolds submitted that it did not matter that the imputations pleaded in the Supreme Court proceedings and those pleaded in the District Court proceedings were different, referring to Beran (at [49]) where Hodgson JA (with whom Beazley JA and Brownie AJ agreed) opined that it could be an abuse of process for a plaintiff to seek to re-litigate lost issues against, a different party, being a person in the category of author or distributor, "even if the Plaintiff sought to plead the imputations a little differently". He also sought to distinguish Beran by pointing out that Hodgson JA in that case focused on the difference in the publications, not the difference in the imputations as the basis for allowing a subsequent defamation action against The Age for an article similar to one on which judgment was already obtained.
Mr Reynolds submitted that to determine how the case had been run in the Supreme Court it was necessary to look first, and primarily, at the way the case was pleaded. He also contended the Court could not draw the conclusion that the Supreme Court proceedings had been run on the basis that Nationwide was only liable for the radio broadcasts as a re-publisher, even though, as was apparent from the note by Kirby J's associate that counsel for Nationwide accepted Mr Evatt's statement that, in substance, the only issue for the jury was the Daily Telegraph article "because the three broadcasts are republication". He contended that the Court should not try "to read a lot into" the associate's note, which he submitted only amounted to Nationwide's counsel accepting that the case against Nationwide based on publication of the radio broadcasts was going to be a matter for the judge.
Mr Reynolds also argued that, in any event, it did not matter for the purpose of his working proposition whether the Supreme Court proceedings had been pleaded (or conducted) as one of Nationwide being responsible for the publication or republication of the radio broadcasts. It was sufficient that Nationwide had been sued as being "responsible" for the radio broadcasts, which were the identical matters the subject of the District Court proceedings.
As to the second limb of his working proposition, Mr Reynolds submitted that the effect of the jury verdict in the Supreme Court proceedings and the consent judgment entered in respect of the entirety of the proceedings, was that the appellant abandoned running any case based on the liability of Nationwide as publisher of the radio broadcasts. He submitted that the consent judgment on the entirety of the appellant's Supreme Court case was analogous to the settlement of cases in Thomson v Lambert and Schellenberg v BBC [2000] EMLR 296.
Mr Reynolds drew attention to the discussion in P Milmo and W V H Rogers, Gatley on Libel and Slander, 11th ed (2008) Sweet & Maxwell ("Gatley") (at 32.42), concerning the application of the principles of abuse of process to ensure finality. He referred to what he described as the leading case, Schellenberg, and to Burtonshaw v BBC (1978) NLJ 483 which he contended supported his working proposition.
Mr Reynolds argued that the appellant would suffer no injustice if denied a further opportunity to seek damages in respect of the radio broadcasts in circumstances where he abandoned the opportunity to pursue the respondents in the Supreme Court action, waived his right to a jury determination as to the imputations carried by the radio broadcasts and consented to a verdict for Nationwide in respect of all pleaded imputations. He also argued it would not be unjust to deny the appellant the opportunity to seek relief in respect of additional imputations not reasonably encapsulated within those pleaded in the Supreme Court, because, in substance, so few of the additional imputations could be said to fall into that category.
In contrast, Mr Reynolds contended that there would be an injustice to the respondents if the District Court proceedings were permitted to continue as they could not seek contribution or indemnity from Nationwide pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) in respect of any liability for damages they may have for the radio broadcasts as, by virtue of the verdict in the Supreme Court proceedings, Nationwide was no longer a "tortfeasor … liable in respect of the same damage".
In reply, Mr Evatt reiterated that the Supreme Court proceedings, insofar as they concerned the radio broadcasts, were pleaded and conducted as a republication case. He distinguished Webb v Bloch as being a case dealing with only one, not several, publications and Thomson v Lambert as involving the same publication but different distributors.

[11]

Consideration

It is convenient to commence with some general propositions which set the framework for the determination of the issues. That framework, reduced to the most essential propositions, is found in a person's right to pursue legal remedies, and the public interest in both the finality of litigation and preserving confidence in the administration of justice.
A plaintiff with cumulative remedies is not required to choose between them and may have both: Tang Man Sit v Capacious Investments Ltd [1996] AC 514 (at 522) per Lord Nicholls of Birkenhead, delivering the judgment of the Privy Council; cited with approval by Gleeson CJ and Callinan J in Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635 (at [39]).
However, in Dow Jones (at [36]), Gleeson CJ, McHugh, Gummow and Hayne JJ observed (footnotes added): "Clearly, the common law favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings. The principles of res judicata [ Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446], issue estoppel [ Blair v Curran [1939] HCA 23; (1939) 62 CLR 464], and what has come to be known as Anshun estoppel [ Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589], all find their roots in that policy. Effect can be given to that policy by the application of well-established principles preventing vexation by separate suits [… in relation to defamation, see also Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 at 100-102; Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519 at 537; Meckiff v Simpson [1968] VR 62 at 65 and [1968] VR 69; Thomson v Lambert[1938] 2 DLR 545] or, after judgment, by application of the equally well-established principles about preclusion, including principles of Anshun estoppel."
Res judicata "is a broad rule of public policy based on the principles expressed in the maxims 'interest reipublicae ut sit finis litium' and 'nemo debet bis vexari pro eadem causa' ": Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 (at 466) per Fullagar J. In Rogers v R [1994] HCA 42; (1994) 181 CLR 251 (at 273) Deane and Gaudron JJ described the first of the Latin maxims to which Fullagar J referred as expressing "the need, based on public policy, for judicial determinations to be final, binding and conclusive [while] [t]he second looks to the position of the individual and reflects the injustice that would occur if he or she were required to litigate afresh matters which have already been determined by the courts". They added that there was a related principle, "likewise fundamental, … embodied in the Latin maxim res judicata pro veritate accipitur [which] gives expression to … the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct". They described the principle as "essential for the maintenance of public respect and confidence in the administration of justice".
The doctrine of res judicata properly so-called (the first principle referred to in Dow Jones) applies where a plaintiff establishes his cause of action so that, upon judgment, the cause of action and any matters which were necessarily established as its legal foundation or as the justification for its conclusion, or were legally indispensable to the conclusion merge in the judgment, and no longer have an independent existence and cannot be re-litigated in subsequent proceedings between the parties of their privies: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 (at 531 - 532) per Dixon J; Anshun (at 597) per Gibbs CJ, Mason and Aickin JJ; Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21; (1988) 164 CLR 502 (at 508) per Deane, Toohey and Gaudron JJ; James Hardie and Co v Seltsam Pty Ltd [1998] HCA 78; 196 CLR 53 (at [40]) per Gaudron and Gummow JJ.

[12]

Estoppel per rem judicatam

The doctrine of res judicata is not confined to cases in which judgment is entered in favour of a plaintiff. As Giles JA (with whom Tobias JA and Cripps AJA agreed) explained in Abigroup Contractors Pty Ltd v ABB Service Pty Ltd (formerly ABB Engineering Construction Pty Ltd) [2004] NSWCA 181 (at [143]): "[143] Res judicata is not a single doctrine. … Where a plaintiff fails to establish his cause of action and there is judgment for the defendant, there is nothing to pass into judgment and the judgment operates as an estoppel . It is the estoppel per rem judicatam described by Diplock LJ in Thoday v Thoday (1964) P 181 at 197-8: … The particular type of estoppel relied upon by the husband is estoppel per rem judicatam . This is a generic term which in modern law includes two species. The first species, which I will call 'cause of action estoppel', is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, ie, judgment was given upon it, it is said to be merged in the judgment, or for those who prefer Latin, transit in rem judicatam. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam. This is simply an application of the rule of public policy expressed in the Latin maxim 'Nemo debet bis vexari pro una et eadem causa '. In this application of the maxim 'causa' bears its literal Latin meaning. The second species, which I will call 'issue estoppel', is an extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action . If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was ." (Emphasis added)
Estoppel per rem judicatam or "cause of action estoppel", can be "pleaded in bar whenever in a proceeding of a court of competent jurisdiction between the same parties or their privies an issue has been once taken and found … [and] is then concluded between the parties taking it and their privies according to the finding thereof so as to estop the parties from again litigating that fact once so tried and found": Jackson v Goldsmith (at 460) per Williams J; see also (at 467) per Fullagar J.

[14]

Abuse of process

The term "abuse of the process of the Court" (of which Anshun estoppel, the third principle referred to in Dow Jones, forms part) is used in many senses. What amounts to abuse of court process is insusceptible of a formulation comprising closed categories: Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256 (at [1], [9]) per Gleeson CJ, Gummow, Hayne and Crennan JJ. While accepting this proposition, in PNJ v R [2009] HCA 6; (2009) 83 ALJR 384 (at [3]), French CJ, Gummow, Hayne, Crennan and Kiefel JJ said that many cases of abuse of process exhibited at least one of three characteristics: "(a) the invoking of a court's processes for an illegitimate or collateral purpose; (b) the use of the court's procedures would be unjustifiably oppressive to a party; or (c) the use of the court's procedures would bring the administration of justice into disrepute."
The power to stay proceedings permanently on the ground that they are an abuse of process should be exercised with caution (Moore & Ors v Inglis (1976) 50 ALJR 589 (at 593) (upheld on appeal (1976) 51 ALJR 207) per Mason J (as his Honour then was)) and only in the most exceptional or extreme case: Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 (at 392) per Mason CJ, Deane and Dawson JJ (approving the Court of Appeal's formulation of the test in Gill, Herron and Gardiner v Walton (1991) 25 NSWLR 190). The onus of satisfying the court that there is an abuse of process lies upon the party alleging it, it is "a heavy one": Williams v Spautz[1992] HCA 34; (1992) 174 CLR 509 (at 529) per Mason CJ, Dawson, Toohey and McHugh JJ.
A decision to stay or dismiss proceedings on the basis that they are an abuse of process involves the exercise of discretion in the sense that "although there are some clear categories, 'the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse' ". Accordingly "as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration": Batistatos (at [7]) referring to R v Carroll [2002] HCA 55; (2002) 213 CLR 635 (at [73]) per Gaudron and Gummow JJ.

[15]

Anshun estoppel

The principle commonly referred to as Anshun estoppel, established in Henderson v Henderson (1843) 3 Hare 100; [1843-60] ER 313 (at 319)), involves an extended doctrine of res judicata. It operates "not only [in respect of] points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time": Anshun (at 598) per Gibbs CJ, Mason and Aickin JJ. There will be an estoppel if it appears that "the matter relied upon … in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it": Anshun (at 602). The test is one of reasonableness. Gibbs CJ, Mason and Aickin JJ rejected (at 602) Lord Kilbrandon's formulation of the test in Yat Tung (at 590) that it was "an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings".
Thus Anshun estoppel introduces "an evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings"; it is "allied to, but not co-extensive with, res judicata and issue estoppel": Spalla v St George Finance Ltd (No 6) [2004] FCA 1699 (at [64] - [65]), referring to Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 (at 295) (Full Federal Court).
An Anshun estoppel also arises where an omission to plead a claim or defence will contribute to the existence of conflicting judgments, including those which are contradictory, though they may not be pronounced on the same cause of action as long as they appear to declare rights which are inconsistent in respect of the same transaction: Anshun (at 603 - 604). Thus an Anshun estoppel will apply even though the parties to the second proceedings are not the same as in the first. Although there may be "no question … of oppression and unfairness" where the parties in the second action "were not parties to the earlier action", the new proceedings may threaten the integrity of the administration of justice if they raise the prospect of conflicting judgments: Spalla (at [64] - [65]), referring to Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 (at [36]).
A strict approach is necessary in an Anshun estoppel case to the inquiry whether there exists the requisite identity between the proceedings; the mere fact that the proceedings are closely related is insufficient; a technical approach is not helpful, the doctrine being concerned with substance and not form: see Bazos and Anor v Doman and Ors [2001] NSWCA 347 (at [44]) per Stein JA (Priestley and Beazley JJA agreeing) and the authorities to which his Honour refers. In determining whether an Anshun estoppel has been established, the court inquires into realities and not mere technicalities: R v Humphrys [1977] AC 1 (at 41) per Lord Hailsham; cited with approval by Handley JA (Young CJ in Eq agreeing) in Cleary v Jeans [2006] NSWCA 9; (2006) 65 NSWLR 355 (at [19]). The Court can look at "any material that shows what issues were raised and decided": Rogers v R (at 263) per Brennan J.
In considering whether an Anshun estoppel has been established it is necessary to bear in mind that "shut[ting] out a claim … a party wishes to pursue, without determination of its intrinsic merit, on the ground that it ought to have been raised in earlier litigation…is a serious step, [and] a power not to be exercised except 'after a scrupulous examination of all the circumstances' ": Ling v Commonwealth (1996) 68 FCR 180 (at 182) per Wilcox J, approved in Bazos (at [45]) per Stein JA (Priestley and Beazley JJA agreeing); see also Brisbane City Council v Attorney-General (Qld) [1979] AC 411 (at 425) per Lord Wilberforce.
Thus in Johnson v Gore Wood & Co (a firm) [2000] UKHL 65; [2002] 2 AC 1 (at 31) Lord Bingham of Cornhill held: "The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party . It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not." (emphasis added) This passage must be read, of course, subject to the Anshun reasonableness test, rather than the Yat Tung "could and should have" test (although his Lordship was concerned that test should not be applied too rigorously).
In considering whether it would have been reasonable to rely upon a matter in earlier proceedings, courts recognise "that there are a variety of circumstances … why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings eg expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few": Anshun (at 603).

[16]

Reichel v Magrath

One of the bases upon which the primary judge appears to have concluded that the District Court proceedings were an abuse of process was because she formed the view the appellant was seeking to re-litigate, by changing the form of his proceedings, an issue decided in the Supreme Court proceedings.
There can be an abuse of process where, even though a plea of res judicata, cause of action or issue estoppel is not available "if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again …": Reichel v Magrath (1889) 14 App Cas 665 (at 668) per Lord Halsbury LC; Walton v Gardiner (at 392 - 393) per Mason CJ, Deane and Dawson JJ; Rogers v R (at 286 - 287) per McHugh J (in a dissenting judgment) referred to with apparent approval in Batistatos (at [15]) per Gleeson CJ, Gummow, Hayne and Crennan JJ; PNJ (at [3]) per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 (at 410) per Hunt CJ at CL. This form of abuse of process can be invoked both by parties to the original proceedings, as well as non-parties: State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Tort Rep ¶81-423 per Giles CJ Comm D (as his Honour then was); Rippon v Chilcotin [2001] NSWCA 142; (2001) 53 NSWLR 198 per Handley JA (Mason P and Heydon JA agreeing). It may be a form of Anshunestoppel, the underlying premise being that success on the reformulated case would contradict the outcome, or determination of an issue, in earlier proceedings.
It is unnecessary to rehearse the facts of Reichel, which are well known. Suffice it to say that the erstwhile vicar of Sparsholt's defence, setting up the same claim he had unsuccessfully made against the Bishop of Oxford, was struck out on the basis, according to the Lord Halsbury LC (at 668), that it would be: "… a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceeding to set up the same case again. … it surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same question which the Court has decided in a separate action."
In State Bank of NSW Ltd v Stenhouse Ltd, Giles CJ Comm D considered the circumstances in which there may be an abuse of process warranting a stay where a party sought to re-litigate an issue decided between himself and a third party. He traced the principle to Reichel, and, after considering the authorities and observing that whether there was "an abuse of process because a party seeks to re-litigate an issue already decided depend[ed] very much on the particular circumstances", said (at 64,089): "The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are - (a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or ultimate issue; (b) the opportunity available and taken to fully litigate the issue; (c) the terms and finality of the finding as to the issue; (d) the identity between the relevant issues in the two proceedings; (e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; … (f) the extent of the oppression and unfairness to the other party if the issue was re-litigated and the impact of the re-litigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and (g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process."(Emphasis added) His Honour's identification of the relevant considerations was cited with approval by Handley JA (Mason P and Heydon JA agreeing) in Rippon (at [32]). Handley JA added (at [33]) that "[t]hese considerations, as Heydon JA pointed out in R v O'Halloran (2000) 159 FLR 260 at 293, 'turn on precise identification of the issues'." In R v O'Halloran , in the passage to which Handley JA referred, Heydon JA was commenting on the first four of Giles CJ Comm D's factors.
The considerations identified in Stenhouse are non-exhaustive, but indicate the nature of the Court's task in such cases: Spalla (at [70]).
Hunt CJ at CL considered a Reichel abuse of process claim in Haines. Haines brought defamation proceedings against, inter alia, the Australian Broadcasting Corporation (the "ABC"). The ABC succeeded in having the imputations upon which the plaintiff relied struck out by Levine J at a separate trial conducted pursuant to Supreme Court Rules 1970 (NSW), Pt 31 r 2 to determine the capacity of the matter complained of to convey the imputations. The plaintiff then sought leave to file an amended statement of claim which no longer named the ABC as a defendant, but added the Australian Film Finance Corporation Ltd (the "AFFC") as a defendant and re-framed the action from one in defamation to claims for injurious falsehood and misleading or deceptive conduct.
The AFFC opposed the application to amend on the basis, inter alia, that the claims sought to be pleaded against it would have been struck out if pleaded in the original pleading: Haines (at 407). Hunt CJ at CL held (at 410) that the AFFC was not entitled to the benefit of Levine J's ruling on the basis of either res judicata or issue estoppel "as the causes of action are not the same, and that determination was not one between the same parties or their privies".
Hunt CJ at CL considered whether, nevertheless, the plaintiff was precluded from amending by virtue of the Reichel principle.
His Honour's judgment contains a useful analysis of successful and unsuccessful applications of Reichel, which it is unnecessary to do more than note: South Australian Housing Trust v State Government Insurance Commission (1989) 51 SASR 1 where the Reichel claim failed because the issues in the earlier and later actions were different; North West Water Ltd v Binnie & Partners [1990] 3 All ER 547 where the Reichel claim succeeded on the basis that the defendants had had "a full and fair opportunity in the earlier action" of canvassing a negligence issue and "should not have another opportunity … to re-litigate" it (Haines (at 412)) and Re Thomas Christy Ltd (in liq) [1994] 2 BCLC 527 in which proceedings commenced by a managing director who sought to re-litigate issues concerning his fitness to be concerned in the management of a company in subsequent proceedings against new parties were held to be an abuse of process, with Jacob J saying (inter alia) (at 537) that: "… I formed the clear view that to allow re-litigation of the service contract issue would be an abuse of process. It would in the words of Lord Diplock 'bring the administration of justice into disrepute amongst right-thinking people'. To allow re-litigation of those [issues] before the self-same court would seem absurd to Joe Citizen who through his taxes pays for the courts and whose own access to justice is impeded by court congestion." Re Thomas Christy was a "very special case": R v O'Halloran (at [104]) per Heydon JA (Spigelman CJ and Mason P agreeing).
Having considered these authorities Hunt CJ at CL said (at 414): "There are obviously limitations to striking out pleadings or causes of action as an abuse of process upon the basis stated in Reichel v Magrath … The issue determined in the earlier case which is sought to be litigated in the later case must be one which the party propounding it in the latter lost in the former … It must be an issue which was necessarily determined in the earlier case, and one of importance to the final result. It must have been properly argued - by which I mean that … the tribunal which decided it was an appropriate one to do so, that the parties were appropriate contradictors and that the issue was regarded by them as one of importance … In normal circumstances the decision disposing of the issue must have been a final one … There may also be circumstances in which, notwithstanding the absence of an appeal, it is clear that the earlier decision has overlooked some binding authority, or that it has caused the unsuccessful party a manifest injustice … all the circumstances of the determination in the earlier case may be considered …." (Emphasis added) Handley JA cited this passage with approval in Rippon (at [31]).
Hunt CJ at CL then turned to consider the application of Reichel to the proposed amended statement of claim. He concluded it did not operate to prevent the plaintiff amending his statement of claim because the representation upon which the plaintiff sought to rely was a "substantially different representation" from the imputation Levine J had struck out: Haines (at 415).
The significance of Haines for present purposes, in addition to the helpful analysis of the Reichel line of authorities, lies in Hunt CJ at CL's consideration of the Reichel question not in terms of the underlying publication, but by reference to a comparison between the imputation the plaintiff had pleaded in his unsuccessful defamation action and the representation upon which he sought to rely for the purpose of his injurious falsehood/misrepresentation case. This is consistent, insofar as defamation proceedings governed by the 1974 Act are concerned, with the imputation constituting the cause of action. Thus, the real Reichel issue, if there be one in this case, turns on whether in the District Court proceedings, the appellant is seeking to re-litigate "the same question" or the "same case" vis-à-vis the imputations, on which he failed in the Supreme Court proceedings by changing the form of the proceedings.
It should also be noted that in all the cases considered by Hunt CJ at CL in which the Reichel point had succeeded "the persons said to have abused process had loston an issue in the earlier proceedings" (emphasis added): see R v O'Halloran (at [109]) per Heydon JA. By "lost" I understand Heydon JA to have meant fully litigated in the sense of the issue having been argued unsuccessfully on its proponent's part.

[17]

Issue estoppel: the "same question"

Because both Anshun estoppel, and its "relative", Reichel estoppel turn, in part, upon determining whether the issues in subsequent proceedings are the same as, identical to, or substantially so to those determined in earlier proceedings, it is useful to consider Kuligowski. That case illustrates the necessity to approach with precision the identification of the "same question", albeit in that case for the purposes of a plea of issue estoppel. However it could not be the case that a lesser standard would apply when comparing the issues raised and/or decided in earlier proceedings with those raised for determination in subsequent proceedings for the purpose of considering either an Anshun estoppel or Reichel abuse case.
Kuligowski suffered an ankle injury at work on 23 March 1994. His employer, MetroBus, paid him workers' compensation, but subsequently lodged an application in the Conciliation and Review Directorate of Western Australia disputing its liability to do so. It sought an order pursuant to s 60 of the Workers' Compensation and Rehabilitation Act 1981 (WA) (the "WA Act") suspending payments until the worker proved he had sustained an injury. On 6 September 1996 an officer of the Directorate ordered that the payments should be discontinued and that Metrobus's application for an order that the worker refund the compensation paid be dealt with by way of a fresh application referring the dispute for conciliation. The officer made a finding, in substance, that the worker had sustained a disability within the meaning of the relevant provision of the WA Act and that it had "resolved": Kuligowski (at [14]). As the Full Court (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ) pointed out, the finding did not determine when the disability had resolved, but their Honours inferred that the finding was that it had "resolved" after the final medical certificate and prior to the date of the officer's determination.
The officer also found that the evidence failed to establish that the worker's "present injuries arise out of or in the course of his employment with MetroBus nor do I believe that there are grounds for finding that a recurrence of aggravation of the ankle injury within the definition of disability under the Act has occurred": Kuligowski(at [16]).
Pursuant to the WA Act, the issues before the officer acted "as gateways through which parties wishing to obtain resolution of particular disputes … may pass", and if they did, proceedings for resolution of the dispute were brought under the Act and, if conciliation failed, a review took place: Kuligowski (at [33]).
The worker then obtained leave from a Deputy Registrar of the District Court of Western Australia to institute proceedings in that Court for damages at common law in relation to the injury. His statement of claim pleaded that the accident of 23 March 1994 occurred as a result of the negligence of MetroBus, and caused him injuries, and that in April 1995 and as a consequence of ongoing instability in his left ankle, his ankle gave way, causing him to twist and injure his left knee. The later date was prior to the officer's determination. He also alleged that, (again at a date which preceded the officer's determination) as a consequence of ongoing symptoms in his left ankle, he underwent surgery to repair tendons in his left ankle, which caused post operative complications: Kuligowski (at [42]).
The Deputy Registrar dismissed an application by MetroBus that the worker's claim be dismissed on the basis of issue estoppel arising from the decision in the Worker's Compensation proceedings. The Deputy Registrar's orders were set aside by a Commissioner of the District Court who accepted MetroBus's contention. The Full Court of the Supreme Court of Western Australia by majority dismissed an appeal from the Commissioner's orders: Kuligowski (at [1]). The High Court allowed the worker's appeal, concluding that the District Court proceedings did not raise the "same question" as had been determined in the worker's compensation proceedings.
The High Court (in a judgment of the Full Court) identified (at [45]), the question to be determined for the purposes of issue estoppel as "whether a finding that the … injury had 'resolved', considered with the other observations of the … officer, is a finding on the same issue as the issue whether in April 1995 the worker had 'ongoing instability in his left ankle'." Their Honours concluded that MetroBus had not demonstrated that the issues were the same. Their Honours said (footnotes added): "[46] The second review officer did not make any finding, as distinct from making general comments on the evidence, as to when the 23 March 1994 injury 'resolved'. Nor did the second review officer make it clear what was meant by the word 'resolved'. Let it be assumed that the second review officer's reasons for decision are to be read as containing findings that, although the 23 March 1994 accident occurred in the course of his employment, the worker's 'present injuries' did not fall within paras (a) or (d) of the definition of 'disability', and were not such as to render the worker incapable of work. Even on that assumption, it would not be inconsistent with the second review officer's findings for the District Court to hold in the common law action that there was ongoing instability in the worker's ankle in April 1995 of a kind which, though it did not prevent him from being able to work, was capable of causing his ankle to give way, thus causing him to twist and injure his left knee in April 1995 in the manner alleged. [47] Obviously, if the reasoning of the second review officer is sound, there are considerable difficulties in the case that the worker wishes the District Court to consider. But the difficulties that the evidence which is accepted or rejected in reaching a decision in one set of proceedings may create in a second set, are immaterial in assessing whether the doctrine of issue estoppel applies. Not all estoppels are odious [ New Brunswick Railway Co v British & French Trust Corp Ltd [1939] AC 1 at 21 per Lord Maugham LC]. But all must be certain. It is for that reason that the law , as exemplified in the passage from the judgment of Barwick CJ in Ramsay v Pigram [(1968) 118 CLR 271 at 276] set out above, has strict requirements for the application of issue estoppel ." (emphasis added)
Their Honours noted (at [49]) that it did not appear that the worker had submitted to the officer that whether or not the original injury incapacitated him, it so affected him that he had an ongoing instability rendering him susceptible to further injury. They observed that "even if the worker did propound that issue, the second review officer said nothing about it."
In their Honours' view the issues which the Directorate officer examined, which were whether the worker's "present injuries" could be characterised as a disability within the statutory definition of that term and whether they incapacitated the worker, were distinct from the issues raised in the District Court. In the District Court the issues were, inter alia, whether the injuries of which the worker complained were "causally related to MetroBus's negligence". Their Honours added (at [49]): "It was arguably unnecessary for the second review officer to deal with those issues, and in particular the issue of whether an ongoing instability was created, since favourable answers would not have assisted the worker unless the second review officer also reached a favourable answer on incapacitation."
The Full Court emphasised (at [53]), the necessity of looking at the question of issue estoppel by reference, inter alia, to the structure of the legislation involved and the nature of the proceedings. Looking at those matters their Honours concluded that it could not be said "… that the necessary findings must be treated as having been actually litigated and determined."
Finally, the Full Court observed that the operation of issue estoppel required "more than non-satisfaction to establish an estoppel in later proceedings": Kuligowski(at [60]). Their Honours referred (at [61]) to Williams J's reference in Jackson v Goldsmith to a passage from Halsbury's Laws of England, 2nd ed, vol 13 (1934) (at 409) that: "A party is precluded from contending the contrary of any precise point which, having been once distinctly put in issue, has been solemnly found against him." and observed, "[m]uch here turns upon what is involved in the phrase "solemnly found.' " They identified the importance of the form of the first proceedings, "particularly the issues joined or admitted on any pleadings" and, too (at [62]): "An issue admitted on pleadings or other formal process or otherwise conceded at a hearing may, from the nature of the outcome, necessarily have been decided."

[18]

Statutory Framework

One of the objects of s 3 of the 1974 Act, which was inserted in 2002 by the Defamation Amendment Act 2002 (NSW) (the "2002 Act"), was to promote the resolution of proceedings for defamation before the courts in a timely manner and avoid protracted litigation: s 3(d). The 2002 Act also inserted Part 2A into the 1974 Act dealing with the resolution of disputes without litigation. Part 2A was, no doubt, inserted to give effect to the object found in s 3(c), "to promote speedy and non-litigious methods of resolving disputes concerning the publication of defamatory matter".
Under the 1974 Act, where a person published any matter to any recipient and by means of that publication made an imputation defamatory of another person, the person defamed had, in respect of that imputation, a cause of action against the publisher for the publication of that matter to that recipient: s 9(2). Thus, if more than one imputation was conveyed by the matter complained of, the plaintiff had a cause of action in respect of each imputation.
The 1974 Act expressly contemplated that a plaintiff might bring more than one defamation action against the same defendant "in respect of the same or any other publication of the same or like matter", subject to obtaining the leave of the court in which the further proceedings were to be brought: s 9(3).
Pursuant to s 9(6)(b), nothing in s 9 affected the powers of any court in case of vexatious proceedings or abuse of process. Section 9(6)(b) did not extend to s 48. Section 48 clearly contemplated that a plaintiff might bring more than one defamation action against different defendants in respect of "other publication[s] of matter to the same purport or effect as the matter complained of in the proceedings", albeit that a defendant might plead in mitigation any damages or compensation recovered in respect of such matter, or the fact that proceedings to recover damages for such matter had been brought. The 1974 Act did not require a plaintiff to obtain leave from a court to commence proceedings against different defendants in respect of matter which might be caught by s 48. It also contemplated that more than one set of proceedings might be on foot at the same time in respect of "matter to the same purport or effect as the matter complained of in the proceedings".
It is apparent from the passages in the NSW Law Reform Commission's 1971 report on Defamation to which the primary judge referred (at [74]), that s 9(3) was directed, as its terms indicate, to a plaintiff suing the same defendant more than once in respect of the same publication. These passages cast no light on the reasons s 9(6) was inserted.
The primary judge also said (at [74]) that s 9(6) "appl[ied] to parties who were not joined in the original litigation, if those circumstances, while falling short of res judicata … are so manifestly unjust as to amount to abuse of process." If her Honour was intending to state that s 9(6) of the 1974 Act conferred a freestanding power to strike down proceedings as an abuse of process, I cannot, with respect, agree. In my view, s 9(6) confirmed that the common law principles concerning abuse of process continued to apply, notwithstanding s 9, as long as the circumstances fall within their ambit.
Section 7A of the 1974 Act, inserted by the Defamation (Amendment) Act 1994 (NSW) (Sch 1(2)) provided for "three distinct curial proceedings". First, a judge was to determine in respect of each pleaded imputation that the matter was reasonably capable of carrying the imputation pleaded and that the imputation was reasonably capable of bearing a defamatory meaning. Secondly, pursuant to s 7A(3) a jury determined whether the matters complained of carried each of the imputations and, if so, whether the imputation was defamatory. Thirdly, pursuant to s 7A(4), a judge was to determine whether any defence raised by the defendant had been established and, finally, the amount of damages. Thus, the s 7A(3) determination was made without consideration of any defence, or any issue of damages, which are litigated only at the third and final stage: see John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291 (at [35] - [41]) per Gummow and Hayne JJ; see also (at [158]) per Callinan and Heydon JJ.
Since 15 August 2005, three days before the publication of the matters complained of, proceedings in, relevantly, the Supreme and District Courts, have been governed by ss 56 - 59 of the Civil Procedure Act directed to the just, quick and cheap resolution of the real issues in proceedings, subject to the dictates of justice (s 58) and the fair and just determination of the issues in dispute between the parties (s 59). Such provisions are the servants of justice, not their masters: Harding v Bourke[2000] NSWCA 60; (2000) 48 NSWLR 598 (at [26]) per Mason P (Meagher JA and Heydon JJA agreeing); see also State of Queensland v JL Holdings Pty Limited [1997] HCA 1; (1997) 189 CLR 146 (the High Court has reserved its decision in a case which is considering whether JL Holdings has been properly interpreted: AON Risk Services Australia Ltd v Australian National University [2009] HCATrans 72; [2009] HCATrans 74; [2009] HCAB 5 (Practice and Procedure)).
In Dennis (at [29] - [31]) Spigelman CJ (Basten and Campbell JJA agreeing) held that subsections 3(c) and 3(d) of the 1974 Act facilitated, in the defamation context, the overriding purpose expressed in s 56 of the Civil Procedure Act. Accordingly he concluded Nicholas J had been correct in refusing the plaintiff leave to file a Fifth Further Amended Statement of Claim which contained imputations asserting active conduct in the same terms as the acquiescence imputations his Honour had struck out the day before. However the Court also held that Nicholas J had erred in striking out the imputations - the outcome was that the plaintiff's proceedings remained on foot.

[19]

Liability for publication and republication

Liability as a principal for publication of defamatory material depends upon participation: see Gatley (at [6.16]). All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggests illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected: Webb v Bloch (at 364) per Isaacs J. Such persons are regarded as joint tortfeasors: Webb v Bloch (at 359) per Knox CJ. Subordinate distributors can plead the common law defence of innocent dissemination (Emmens v Pottle (1885) 16 QBD 354), or its statutory analogues: see, for example, s 32, Defamation Act 2005.
However, prima facie, an original publisher is not liable for the voluntary republication of its defamatory statement by a third party over which it has no control, or for the damage caused: Ward v Weeks (1830) 7 Bing 211. The voluntary act of the third party publisher breaks the chain of causation: McManus v Beckham [2002] 4 All ER 497; [2002] 1 WLR 2982 (at [15] - [26]) per Waller LJ.
Nevertheless, an original publisher of defamatory matter may be liable for its republication where the republication was the natural and probable result of the original publication: Speight v Gosnay (at 232) per Lopes LJ; Ainsworth v Burden [2003] NSWCA 90; (2003) 56 NSWLR 620 (at [5]) per Handley JA (Hodgson JA and Grove J agreeing). In those circumstances, a plaintiff is entitled to complain not only of the original publication, but to seek also to recover as a consequence of that original publication, the damage the plaintiff says was suffered by reason of its repetition or republication where the defendant is responsible for that repetition or republication: Cutler v McPhail [1962] 2 QB 292 (at 298 - 299) per Salmon J; Sims v Wran [1984] 1 NSWLR 317 (at 320) per Hunt J (as his Honour then was); Ainsworth v Burden (at [5]).
The question whether the original publisher is liable for the voluntary republication of its defamatory statement or for the damage its republication caused is the same causation question which arises in "any other tort case where it is sought to make the defendant liable for harm which is directly attributable to the voluntary act of a third person": Gatley (at [6.36]); A M Dugdale, M Jones and M Simpson, Clerk & Lindsell on Torts, 19th ed (2006) Sweet & Maxwell (London) (at [23-217] - [23-219]).
Thus, because a plaintiff seeking to recover damages from an original publisher of defamatory matter is seeking to establish that the 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, it is appropriate when pleading such a case to plead that the original publication "caused" the republication. I shall refer to the latter category of a complaint of republication as a case of "republication as damages".
The respondents' written submissions contended that the "better view is that it is not open to a plaintiff to rely upon republication as going only to damages". They referred to Gummow J's statement in David Syme & Co Ltd v Grey (1992) 38 FCR 303 (at 323) that "to rely upon publication in each of the States and Northern Territory as matters 'going only to damages and not as separate causes of action' is to assert what in law is impossible." I do not understand Gummow J's statement to have been addressed to the fundamental principle that a publisher of defamatory matter can be responsible in damages for the foreseeable consequences of the tort, including the republication of the defamatory material. He did not refer to Cutler v McPhail, but did refer, with apparent approval, to Sims v Wran (at 320) where Hunt J discussed that case and to that part of Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 (at 183) where Hunt J explained the republication doctrine as involving damage flowing from the "original publication in the ordinary and usual course of things and thus … recoverable as a consequence of that original publication, in accordance with the general principles relating to damages in tort". Rather, I understand Gummow J's statement to have been directed to the impossibility of "courts of the forum … recognis[ing] and enforce[ing] extraterritorial rights arising from the commission of civil wrongs outside the jurisdiction (something to which the rule in UK Phillips v Eyre is directed) by awarding damages for harm to reputation sustained by publication elsewhere, regardless of whether that injury was wrongful there": see Grey (at 327). This point was not taken in the notice of contention and need not be further pursued.
A person claiming to be defamed by the republication of defamatory matter by a person other than the original publisher is not confined to an action for damages in defamation against that original publisher. Every republication of a libel is a new libel and each publisher is answerable as if the libel had originated with him: Harris v 718932 (at [16]) per Handley JA (Stein and Santow JJA agreeing); Nationwide News P/L v Heggie [2001] NSWCA 257 (at [8]) per Meagher JA; Gatley (at [6.32]). The passage in R O'Sullivan and R Brown, Gatley, 4th ed (1953) Sweet & Maxwell (at 106) stating this proposition was referred to with approval by the Privy Council in Truth (NZ) Ltd v Holloway [1960] 1 WLR 997 (at 1002 - 1003).
Moreover, the nature and extent of the republisher's liability may not necessarily be the same as the originator's: Gatley (at [6.32]). As the Court of Appeal said in Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 (at 49 - 50): "… There can be little doubt that the nature and quality of the defamatory publication may vary, dependent upon whether it is a report of what another has said and whether it is adopted, repudiated or discounted. The purpose of the republication will have a significant bearing … Lord Devlin said in Lewis v Daily Telegraph Ltd [1964] AC 234 at 284: 'For the purpose of the law of libel the hearsay statement is the same as a direct statement, and that is all there is to it'… When a defamatory publication purports to repeat or report the defamatory statement of another it is an essentially different libel from one where the same imputation is conveyed directly. It may require to be charged or defended differently, but it is nonetheless libel ."(Emphasis added) See generally the discussion in John Fairfax Publications Pty Limited v Obeid [ 2005] NSWCA 60; (2005) 64 NSWLR 485 (at [87]) ff.

[20]

Thomson v Lambert

The Thomson v Lambert line of authority upon which Mr Reynolds substantially based his "working proposition" argument holds that, in certain circumstances of multiple publication of defamatory matter, a person defamed has a "complete remedy" in one proceeding and it is an abuse of process to divide the remedy by bringing subsequent proceedings.
The notion of a "complete remedy" was founded on Williams v Hunt [1905] 1 KB 512, a case involving concurrent proceedings by a mortgagee against a mortgagor, first in the Chancery Division (where, however, personal payment of the amount due was not sought, although it could have been) and secondly, in the King's Bench Division, to recover sums due under the mortgage. The Master of the Rolls, Sir Richard Collins (with whom Stirling LJ agreed), held (at 514) that: "Where two separate remedies are possible, and a start is made by putting into force one of those remedies by a writ which would entitle the plaintiff to the relief he subsequently desires, he cannot by deliberately leaving out of his claim reserve his right to ask for it in another proceeding . When proceedings have been started, it is an abuse of process of the Court to divide the remedy where there is a complete remedy in the Court in which the suit was first started." (Emphasis added)
Although the Court did not refer to Henderson, Williams v Hunt appears to be a form of Anshun estoppel, in that the mortgagee was seeking to agitate the same cause of action in concurrent proceedings. It also reflected the pre-Judicature Act (UK) practice of making a plaintiff suing for the same cause of action both at law and in equity, elect as to which action would be pursued: see McHenry v Lewis (1883) 22 Ch 397 (at 400) per Jessel MR.
Williams v Hunt was applied in Thomson v Lambert in the defamation context. In that case the plaintiffs had recovered damages in defamation proceedings brought in the Manitoba Courts against Imperial News Co, the distributors in Winnipeg of a newspaper called "Hush" (the "Winnipeg proceedings"). They also commenced a second action in Manitoba against a seller of the same publication and settled that action on receipt of damages. They obtained a judgment in a third defamation action brought in Manitoba, again against a seller of the same publication. They then brought another ten or twelve defamation actions in Manitoba in respect of the same publication against different sellers, all of which were settled favourably to the plaintiffs. Finally, the plaintiffs commenced defamation proceedings in Ontario against the managing editor and distributor of the same publication. There was no evidence that anyone in Ontario saw the defamatory publication. They relied on publication by the defendants to Imperial News Co (the distributor-defendant in the first action) and various of its employees, as establishing that aspect of their causes of action. The trial judge granted a non-suit on the ground that the defendants were joint tortfeasors with the parties sued in Manitoba. That decision was reversed by the Court of Appeal for Ontario, but reinstated by the Supreme Court of Canada.
Cannon, Crocket and Davis JJ (with whom Duff CJ substantially agreed) allowed the appeal on the basis that it was an abuse of process for the plaintiffs to divide a remedy where they had a complete remedy in the first Manitoba proceedings, referring with approval to Williams v Hunt (at 514). Their Honours noted (at 561) that the plaintiffs "should not be permitted to go on suing one person after another ad infinitum where a complete remedy was available in one action. The law is well employed when it puts an end to just such actions as this". Their conclusion was clearly based on the proposition that all those the plaintiffs had sued, or sought to sue, were jointly liable for the original publication (a point Duff CJ expressly made (at 545)). So regarded, they were, like the mortgagor in Williams v Hunt, persons against whom the plaintiffs had the identical cause of action.
In Haines (at 408), Hunt CJ at CL referred to Thomson as being in that class of cases "where multiple defamation proceedings based upon the same material have been brought against the same defendant where all could readily have been comprehended within the one action", an observation he repeated (with the agreement of Santow JA) in Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 (at [79]). His Honour, in my view, was referring to the "same defendant" as being those principally responsible for publishing of the same publication, as were those sued in Thomson. That was the sense in which Menhennitt J applied it in Meckiff v Simpson, to reject an argument that it was vexatious or oppressive for a plaintiff to commence defamation proceedings against the author and writer, the printer and publisher, and the publisher and distributor of a book in respect of publication in Victoria, as well as "in other States of the Commonwealth of Australia and in the United Kingdom". His Honour observed that, consistently with Thomson, if the plaintiff took proceedings in a number of States and the United Kingdom he might be confronted in other jurisdictions with the contention that it was an abuse of the process of the court for him not to have combined all his claims in one action. The Full Court (at 69) upheld his Honour's decision.
In Maple v David Syme [1975] 1 NSWLR 97, Begg J applied Meckiff to hold that it was an abuse of process for a plaintiff to commence defamation proceedings in Victoria and New South Wales in respect of the same article published in The Age newspaper. He concluded (at 102) that it would be "unduly oppressive on a defendant to have to defend itself twice in two separate actions when the plaintiff could not only vindicate his honour, but also obtain complete monetary compensation, if successful, for the whole of the publication, including the relatively small number circulated in New South Wales, in the one action".
In Harris v 718932 (at [6]), in a passage not essential to his reasoning, Handley JA referred to Thomson without elaboration as an illustration of a case where "it was an abuse of process to bring a second action for substantially the same publication of the same libel … against different defendants." With respect, his Honour's statement does not accurately reflect the Thomson line of authority and the necessity for the previous actions to have been against those jointly liable in respect of the same publication. In Dow Jones (at [36]) Meckiff and Thomson were referred to, without elaboration, as an illustration, by the application of well-established principles preventing vexation by separate suits, of giving effect to the policy of the common law of favouring the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings.
Counsel did not refer the Court to any case in which Thomson had been applied to strike out as an abuse of process an action for defamation against different publishers of different material. My researches uncovered only one case in which such an application was made, albeit unsuccessfully: Lange v Australian Broadcasting Corp (Supreme Court of New South Wales, Levine J, 6 September 1996, unreported, BC9604439). Mr Lange, the former Prime Minister of New Zealand commenced proceedings against the ABC to recover damages for defamation he alleged arose from the broadcast of a "Four Corners" programme (the "Australian proceedings"). The ABC sought to stay the Australian proceedings on the basis that Mr Lange had already obtained damages for defamation (and the broadcasting of an apology) against Television New Zealand ("TVNZ") in the High Court of New Zealand arising from the broadcasting of a programme "Frontline" on Television One in New Zealand on the same day as the Four Corners programme (the "New Zealand proceedings").
Levine J carefully analysed the respective matters complained of and the pleadings. Self evidently, the Australian and New Zealand proceedings were against different parties. Insofar as the matters complained of were concerned, he concluded (BC9604439 at 16) that the TVNZ matter was not "the same" as that published by the ABC, the differences, including some minor textual differences, apparently being constituted by introductory and concluding remarks by the presenter in the TVNZ programme. As to the pleadings, his Honour said that there was "some concurrency" between the imputations in the Australian proceedings and the pleaded meanings in the New Zealand proceedings. His Honour distinguished the Williams v Hunt line of authority, characterising Thomson as concerned with the publication by joint tortfeasors and actions thereon in various provinces in Canada founded upon one newspaper article (BC9604439 at 20).
One of the ABC's arguments, presumably based on Williams v Hunt and Thomson, was that Mr Lange could have sought damages in the New Zealand proceedings for the publication of the Four Corners programme, on the basis, his Honour assumed (BC9604439 at 21), that TVNZ had "facilitated" the ABC broadcast and would be liable either as a principal in the Webb v Bloch sense or for the republication of the TVNZ programme in the Speight v Gosnay sense. His Honour did not expressly deal with that argument, but may be taken to have rejected it
His Honour concluded (BC9604439 at 23-24) that there were "substantial differences", that the structure of the causes of action in the Australian and New Zealand proceedings was "somewhat different", the identity of the publishers was different and the tort for which Mr Lange sought relief was not the same as that for which he sought relief in the New Zealand proceedings as the tortfeasor was not the same. He also observed that s 48 of the 1974 Act was "conformable with a right in the situation as it exists here for the plaintiff to sue as he in fact has done". Finally, his Honour commented (BC9604439 at 26) "it is the plaintiff who is confronted with 'multiplicity' of actions, not the defendant". That statement is equally apposite to the present case.
The "complete remedy" line of authority applies in the defamation context, in my view, where the plaintiff seeks to sue the "same defendant" (in the Haines sense) in respect of the same publication. I have concluded, for reasons which appear below, that the appellant did not seek to hold Nationwide liable as a principal in the publication of the radio broadcasts. This line of authority does not, therefore, assist the respondents.

[22]

English authorities

Mr Reynolds also relied on Schellenberg v British Broadcasting Corporation which he contended illustrated the English approach to the need for finality in defamation proceedings in relation to issues which have been, or should have been, determined in earlier defamation proceedings, albeit between different parties, both in abuse of process as well as efficiency of litigation terms. It should be noted that such authorities should be approached with some circumspection, having regard to the rejection in Anshun of the English test ("could and should") for the application of the extended doctrine of res judicata.
Schellenberg was an ex tempore judgment delivered by Eady J in which his Honour struck out defamation proceedings the claimant brought in respect of a BBC radio programme broadcast on Radio 4. The claimant had previously brought defamation actions against the publishers of The Guardian and The Sunday Times. The Guardian action had been settled on terms disadvantageous to him some five weeks into The Guardian action. The claimant accepted that he had abandoned The Guardian proceedings because he was likely to lose on a plea of justification and fair comment. The action against The Times was compromised following the collapse of The Guardian action: (see 318 - 319). The BBC applied to strike out the proceedings against it as an abuse of process or because they were frivolous or vexatious and had no real prospect of success.
All publications concerned allegations about the claimant's conduct as owner of the Isle of Eigg - a Hebridean Island off the Scottish west coast - towards his tenants.
In making his decision, Eady J took into account the overriding objective in r 1.1 of the Civil Procedure Rules (UK) ("CPR") (which substantially reflects the objectives in s 56 of the Civil Procedure Act). He held (at 318) that it was necessary to apply that objective even in cases where there was a right to trial by jury "and in particular to have regard to proportionality". He referred, in that respect, to what appeared to be the potentially large costs of the BBC proceedings being pursued to finality, the several weeks of court time that would be involved and the possible benefits which might accrue to the claimant.
Eady J found (at 318 - 319) that the meanings the claimant had relied upon in the Guardian and Times proceedings were very similar. He characterised (at 319) the BBC proceedings as "a desperate exercise in damage limitation [which] represent[ed] one last throw of the dice". He concluded (at 319) that he could not accept there was "any realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources."
In the passages to which Mr Reynolds specifically referred the Court (at 319 - 321), Eady J made some additional observations, not necessary to the conclusion he had already reached to strike out the BBC proceedings, about Henderson extended res judicata. He concluded (at 321) that extended res judicata supported the principle "that all disputes should be brought into one piece of litigation, insofar as they can, and not left to be dealt with piecemeal in serial court hearings" and that the claimant's proceedings offended that principle. This was because, notwithstanding that the BBC publication was different from the newspaper publications, the issue of how the claimant treated tenants on the Isle of Eigg was said to be "in play" in the newspaper actions. He found (at 321) that the claimant had abandoned, by choosing to terminate The Guardian proceedings, the issue of how he treated a particular family of tenants, the Carrs, an issue which could have been resolved, and its resolution in the earlier action would have resolved the issue for the purpose of the BBC proceedings.
It is not clear, with respect, whether Eady J was saying that the claimant ought to have brought his proceedings against The Guardian, The Times and the BBC in one set of proceedings (notwithstanding that the publications were on different dates) or whether he should have pursued The Guardian proceedings to finality to resolve the tenancy issue, rather than settling those proceedings. On a close reading, it appears to me that his Honour was making the latter point. It was in those circumstances that he concluded (at 321 - 322) that the claimant not having brought that issue to finality, it would also be an abuse of process to allow a new proceeding to be started in which that issue would have to be re-litigated.
In Howe & Co v Burden [2004] EWHC 196 (QB) (at [5]), Eady J referred to the "very unusual facts" of Schellenberg, noting that "there had been a lengthy trial which the claimant had abandoned without a definitive result having been achieved" and in which "he had the opportunity … of having a determination on the merits of substantively the same issues as those in the later action which came before me".
Eady J's remarks about the application of the overriding objective in Schellenberg were referred to with approval by the Court of Appeal in Wallis v Valentine [2002] EWCA Civ 1034 (at [32] - [33]) in upholding a decision to strike out defamation proceedings as an abuse of process. The primary judge had concluded that the allegedly defamatory documents had been published to only one person and that the trial was likely to last a fortnight, with probably several prior interlocutory hearings, in circumstances where there had already been other civil proceedings between the parties, who appeared to be neighbours engaged in a dispute about a right to light: (see [24]).
Sir Murray Stuart-Smith (with whom Gibson and Potter LLJ agreed) concluded (at [26], [36]) that the primary judge had been correct in concluding that the proceedings had been commenced by the claimant in pursuit of a vendetta rather than to vindicate his reputation. He also upheld the primary judge's conclusion that the limited extent of publication meant that the plaintiff's reputation would not have suffered any real harm and, finally, that even if any defences failed, damages were likely to be extremely modest, perhaps even nominal.
Both Schellenberg and Wallis were referred to with approval in Dow Jones & Co Inc v Jameel [2005] EWCA Civ 75; [2005] QB 946 (at [57] - [58]), but distinguished (at [59]) on the basis that in Jameel there was no doubt the claimant was seeking vindication.
In Burtonshaw v BBC Melford Stevenson J struck out as an abuse of process defamation proceedings against the BBC in respect of a broadcast titled "Man Alive". The plaintiff had failed in earlier proceedings against a person interviewed on the same BBC programme to persuade a jury that the words were defamatory of him. The note of the case does not reveal his Honour's reasons, but his Honour's decision was most probably based on the possibility of conflicting judgements, a circumstance which as the ensuing discussion will reveal, does not, in my view, arise in this case.

[23]

Recapitulation

Following this legal exegesis, it is appropriate briefly to revisit the parties' cases.
In summary the appellant's case is that there were always two courses he could pursue as and from when the four matters complained of were published. First, he could commence an action against Nationwide as original publisher of defamatory imputations conveyed by publication of the Daily Telegraph article and for damages he suffered from its publication and the foreseeable republication of the original imputations in the radio broadcasts. Secondly, he could sue the respondents as original publishers of defamatory imputations conveyed by publication of the radio broadcasts. He argues that even if he had succeeded against Nationwide including recovering damages in relation to the radio broadcasts, he could have pursued the District Court proceedings and any damages recovered in the Supreme Court proceedings could have been taken into account pursuant to s 48 of the 1974 Act. He contends there is no abuse of process where the issues which arise in the District Court proceedings, whether any of the pleaded imputations were conveyed by the radio broadcasts, were never determined (nor in the circumstances could be determined) or abandoned in the Supreme Court proceedings, are against different publishers and based on different matters complained of.
The respondents do not dispute that the appellant is pursuing the District Court proceedings in order to vindicate his reputation. Nor do they contend the District Court proceedings have no reasonable prospect of success. However they contend the District Court proceedings are an abuse of process both for the reasons the primary judge gave, because the appellant had a complete remedy in the Supreme Court proceedings, because of the way the Supreme Court proceedings were conducted (including the determination of the issues concerning the radio broadcast by the entry of the consent judgment), because the District Court proceedings are substantially the same as the Supreme Court proceedings and because, even though they were not parties to the Supreme Court proceedings, there is a risk of conflicting judgments if the appellant is permitted to continue with the District Court proceedings. The respondents also contend they will suffer prejudice if the District Court proceedings continue because they will be unable to claim contribution from Nationwide.
As the foregoing discussion has revealed, in any case in which a party contends that the principles developed to ensure the finality of litigation and to avoid the scandal of conflicting judgments should be applied, it is essential to examine the circumstances with great care to see whether either principle will be offended.

[24]

Nature of the Supreme Court proceedings

Consideration of both the primary judge's reasons and the notice of contention turns on the issues in, and what was determined by, the Supreme Court proceedings.
The appellant's causes of action in the Supreme Court proceedings were the two original imputations: s 9, 1974 Act. The primary judge concluded he pleaded those imputations as separate torts in respect of both the Daily Telegraph article and the radio broadcasts. Determining whether this was a correct characterisation of those proceedings turns on a close examination of the pleadings, the conduct of the case and the effect of the consent judgment. It is convenient to do that in conjunction with consideration of the notice of contention complete remedy proposition.
The complete remedy argument is substantially based on the proposition that by alleging Nationwide "caused to be published" the radio broadcasts in the Supreme Court amended statement of claim, the appellant was proceeding against Nationwide as original publisher of those broadcasts, rather than pleading a republication as damages case in the Cutler v McPhail sense. While Mr Reynolds accepted that there is no strict distinction necessarily between pleading a publication or a republication case, he argued there is a "traditional distinction that is observed by pleaders" which supported his contention that the appellant had, "very unusually" pleaded that Nationwide was directly responsible for publishing the radio broadcasts. On this basis, the appellant had had a complete remedy in the Supreme Court proceedings which had proceeded to judgment, so that any further proceedings in respect of the same publications constituted an abuse of process.
Mr Reynolds' submissions appeared to proceed on the premise that by pleading Nationwide had "caused to be published" each radio broadcast, that assertion should be accepted as a statement of the fact. This was important to his argument that the proceedings were within the Thomson v Lambert line of authority. However the unverified Supreme Court amended statement of claim "was not a representation or warranty of the objective accuracy of the assertions of fact which it contained", but was "a written identification and communication of the extent of the plaintiff's claim" the function of which was not evidentiary, but "was to identify the issues of fact which would, in the absence of admissions, arise for determination at the trial by defining the outer limits within which the plaintiff's case would be confined": Jamieson & Brugmans v R [1993] HCA 48; (1993) 177 CLR 574 (at 579) per Deane and Dawson JJ (Gaudron J agreeing). Before final judgment, pleadings containing positive assertions of fact are statements of the party's intention and, in the normal case, pleadings alone provide a poor basis for an estoppel: Cleary v Jeans (at [16]) per Handley JA, referring to Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394 (at 414) per Mason CJ, (at 485) per Gaudron J, and (at 503) per McHugh J.
In my view the primary judge erred in her characterisation of the Supreme Court proceedings and, too, the first limb of Mr Reynolds' working proposition should be rejected.
Webb v Bloch concerned the liability in defamation of the members of a committee seeking to recover compensation from the South Australian Government in relation to the consignment for sale of wheat crops. They became concerned about steps taken by a South Australian committee seeking to pursue similar aims. They retained a solicitor, Norman, to draft a circular seeking to solicit funds to continue their cause. The circular was published to persons who had consigned their wheat crops to the South Australian Government. It contained untrue matter, defamatory of the plaintiff. It was found that the solicitor did not believe in the truth of certain of the defamatory matter in the circular. At the time it was published one of the other defendants, Bloch, knew of its contents and did not believe in its truth; another, Pratt, was unaware of the contents of the circular but was aware of the untruth of the defamatory statement in it concerning the plaintiff; and two other members of the committee, M and C, were unaware of the contents of the circular or whether the statements in it were true or false. At trial Starke J found that the circular was published on a privileged occasion.
On appeal, Knox CJ (at 359) held that, in order to defeat the defence of qualified privilege, it was unnecessary to establish personal malice on the part of all members of the committee, concluding that they were "jointly responsible with the defendants Bloch and Pratt for the publication of the libel and so joint tortfeasors with them". The malice of one of the joint tortfeasors defeated the privilege of all of those responsible in law for the publication of the defamation: Smith v Streatfeild [1913] 3 KB 764.
Isaacs J reached a like conclusion, citing (at 363 - 365) the proposition, set out earlier in these reasons (at [121]) concerning participatory liability for publication. He quoted T Starkie A Treatise on the Law of Slander and Libel, 1st ed, vol 2 (1830) (at p 29) concerning the pleading of such a case: "The declaration generally avers, that the defendant published and caused to be published; but the latter words seem to be perfectly unnecessary either in a civil or criminal proceeding; in civil proceedings, the principal is to all purposes identified with the agent employed by him to do any specific act". (emphasis in original)
However while the concept of accessorial publication may be expressed by pleading in the form to which Isaacs J referred, as I have explained a republication case also turns on issues of causation, with the plaintiff having to make good the proposition that the republisher's actions did not break the chain of causation.
The distinction the appellant's amended statement of claim drew between Nationwide's responsibility for the various publications can be seen in the pleading (in par 2) that Nationwide "published" the Daily Telegraph article, but (in pars 4, 6 and 8) that it "caused to be published" the radio broadcasts. That made it apparent, in my view, that the appellant was proceeding against Nationwide as original publisher of the Daily Telegraph article and as having caused, in the republication sense, the publication of the radio broadcasts
The particulars of publication also make the appellant's case to claim for the republication of the original imputations in the radio broadcasts on the issue of damages clear. Particular (b), for example, referred to the sensational nature of the Daily Telegraph article, Nationwide's knowledge that the article was likely to be read by radio commentators and the fact that the three radio commentators did read it and repeated its essence. There would have been no need to plead such matters if the appellant had been alleging Nationwide directly published the radio broadcasts so as to be responsible for them in the sense referred to in Webb v Bloch, that is to say as joint tortfeasors with the respondents, each complicit in varying degrees in the same publication. Rather one would have expected to see particulars which identified how Nationwide was said to have participated (in the Webb v Bloch sense) in the publication of the radio broadcasts.
The way the appellant put his case in respect of the radio broadcasts was, in my view, made clear by the exchange which took place at the commencement of the Supreme Court s 7A hearing.
Kirby J's inquiry about whether a cassette player would be required to play the radio broadcasts to the jury was clearly directed to the necessity, if the jury was to discharge the s 7A(3) function of determining whether the original imputations were carried by the radio broadcasts, of playing the broadcasts to them, having regard to their transient nature: Gorton v Australian Broadcasting Commission (1973) 22 FLR 181 (at 184) per Fox J; Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 (at 413) per Hunt J.
Mr Evatt's response to Kirby J's inquiry, that, in substance, the three broadcasts were not to be played to the jury because they were a "republication, so the issue for the jury is only the Daily Telegraph article" conveyed to his Honour that the case was governed by Griffith and that it would be for the judge who determined issues of defences and damages, should they arise, to determine whether the radio broadcasts carried the imputations, and, if they did, whether their publication on the radio broadcasts was a foreseeable consequence of the publication of the Daily Telegraph article.
Mr Evatt's statement thus made it clear to the Court, and if need be to Nationwide, that the appellant's claim in respect of the radio broadcasts was a republication as damages one. Nationwide's counsel, who is among the most experienced defamation practitioners in New South Wales, acceded to Mr Evatt's response. He could have had no doubt about the way the appellant was putting his case in this respect.
Had it been Nationwide's contention that it had been sued as a direct publisher of the radio broadcasts it was incumbent on Nationwide's counsel to inform Kirby J that the jury had to discharge its statutory function under s 7A(3) of the 1974 Act to determine whether the original imputations were carried by them. As Allsop J (as his Honour then was) said in White v Overland [2001] FCA 1333 (at [4]) (in a passage frequently cited with approval in this, and other, courts): "[I]f something has been said, where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party through his or her representative ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. Litigation is not a game. It is a costly and stressful, though necessary, evil… In the long run, the only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone."
Accordingly, in my view the appellant sued Nationwide in the Supreme Court proceedings as original publisher of the original imputations in the Daily Telegrapharticle, and sought to make good a republication as damages case if they were carried by the radio broadcasts. The primary judge erred (at [35]) in reaching the contrary conclusion.

[26]

Effect of the consent judgment

The judgment entered for Nationwide in the Supreme Court proceedings operated, vis-à-vis Nationwide, as a cause of action estoppel. The appellant could no longer assert (or deny) as against Nationwide the existence of a cause of action determined in the Supreme Court proceedings. Nor could he assert in subsequent proceedings as against Nationwide, an "identical condition" which was a requirement common to two or more different causes of action, if in the Supreme Court proceedings "upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled [had been] determined by a court of competent jurisdiction, either upon evidence or upon admission by a party": Thoday v Thoday (1964) P 181 (at 198). However, he could, with leave, have proceeded against Nationwide again, in respect of the same or any other publication of the same or like matter: s 9(3), 1974 Act.
However what was determined in the Supreme Court proceedings was only an estoppel per rem judicatam between the same parties or their privies: Blair v Curran (at 531) per Dixon J. The parties in the Supreme Court and the District Court proceedings are not the same, nor, as Mr Reynolds accepted, were Nationwide and the respondents privies. They did not claim "under or through" one another, that being the basic requirement of privity in interest (Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (at 413) per Gummow J) nor were they persons identified in estate or interest (other than curiosity or concern in the litigation of some interest in the outcome) in the litigation: see G Spencer Bower, A K Turner and K R Handley, The Doctrine of Res Judicata, 3rd ed (1996) Butterworths (at [231]). There is no privity between joint or concurrent tortfeasors (assuming Nationwide and the respondents to be the latter) simply because of that relationship: Ramsay v Pigram (at 280) per Barwick CJ.
However, Mr Reynolds submitted that by virtue of the consent judgement the appellant effectively abandoned running any case based on the publication of the original imputations in the radio broadcasts. This argument has been substantially disposed of by what I have just said about the second and third stages of the defamation hearing under the 1974 Act, however it can also be disposed of for the following reasons.
Orders made by consent may create an estoppel as between parties, (and, no doubt may be considered for the purpose of determining whether subsequent proceedings would lead to conflicting judgments), however they do so "only as to those matters which are necessarily decided", to ascertain which "the court will closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to": Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69 (at 75), per Street CJ and Roper CJ in Eq; see generally the helpful discussion of the issue by Barrett J in Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2008] NSWSC 185; (2008) 72 NSWLR 160 (at [63] - [65]); Abigroup Contractors Pty Ltd (at [146]).
Thus while the judgment entered in the Supreme Court proceedings gave a verdict for Nationwide "in respect of each pleaded imputation" it is plain, in my view, that that was only in respect of the imputations the jury had rejected, the issue of whether they had been republished in the radio broadcasts never having been determined, or arisen for determination. The consent judgment is consistent with the appellant having failed at the s 7A(3) gateway, being unable to pursue his claim for damages, and the issue of the foreseeability of the original imputations being published in the radio broadcasts accordingly being otiose: cf the earlier discussion of Kuligowski. The primary judge (at [63]) erred in reaching the contrary conclusion.
The errors I have identified in the primary judge's reasons reveal that she mistook the facts about the nature of the Supreme Court proceedings. As her characterisation of the appellant's case in those proceedings was fundamental to her conclusion to strike out the District Court proceedings as an abuse of process, it is open to this Court to reach its own decision on the respondents' motion: R v Edwards [2009] HCA 20; (2009) 83 ALJR 717 (at [32]).
The reasons I have already given provide the background against which the District Court proceedings should be considered.

[27]

Nature of the District Court proceedings

The remaining issue is whether anything in the manner the Supreme Court proceedings were conducted warrants striking out the District Court proceedings either by virtue of an Anshun estoppel or the application of the Reichel principle. Is the appellant, as the primary judge concluded, seeking in the District Court proceedings to re-litigate an issue decided in the Supreme Court proceedings?
The District Court proceedings were brought against the respondents as original publishers of each radio broadcast. The imputations pleaded in the District Court proceedings include the two original imputations and the additional imputations, each being a separate cause of action.
It does not appear that the respondents contended before the primary judge that the additional imputations were not capable as a matter of law of being conveyed by the respective radio broadcasts (s 7A(2), 1974 Act). It is also not apparent that they argued the additional imputations did not differ in substance from the original imputations so as to have been part of the Supreme Court causes of action: see David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667 (at [48] - [52]) per Charles JA and the passages in Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1988) 193 CLR 519 to which his Honour referred.
There was some discussion in the respondents' written submissions as to whether some, but not all, of the additional imputations differed in substance from the original imputations, but no point was taken in the notice of contention, or in Mr Reynolds' oral submissions, that the primary judgment should be upheld for this reason.
I have set out the transcript of the Daily Telegraph article and the three radio broadcasts in the Schedule to these reasons in order of publication. I have italicised those portions of the radio broadcast transcripts which, in my view, set out the Daily Telegraph article either verbatim or in substance.
The primary judge considered this question in the context of the view she had formed concerning the relationship between the Daily Telegraph article and the radio broadcasts, and the manner in which the Supreme Court proceedings had been conducted. She appeared to conclude (at [45]) that the radio broadcast imputations were "largely identical" to the Daily Telegraph imputations and (at [57]) that there was a "high overlap between most of [the additional imputations] and [the original imputations]". She did not specify which of the imputations overlapped. She referred to the fact that the content of the Daily Telegraph article was "specifically and repeatedly referred to in each of the matters complained of [and] its contents are summarised" (at 57). As to differences, she concluded (at 57) there was very limited amount of what might be called new material. She set out the new material she identified.
I cannot, with respect, agree with the primary judge's conclusion that the radio broadcasts contained a limited amount of new material. As is apparent from a comparison between the italicised portions of the transcripts of the radio broadcasts set out in the Schedule each radio commentator embellished the original article with their own statements, some to a greater extent than others. Mr Laws was perhaps the most original, choosing, apparently, to sing ditties about the appellant, as well as engaging in talkback radio commentary with "Steve".
Levine J in Lange regarded such embellishments as significant in rejecting an abuse of process assertion. No doubt this is because, when considering whether any imputations were carried by the radio broadcasts, it will be necessary for the jury to consider the broadcasts as a whole, taking into account the context as well as the words alleged to be defamatory: John Fairfax Publications Pty Limited v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 (at [26]). Different impressions may well be conveyed to a reader of a newspaper article and to a person listening to a radio broadcast, whose impressions may be influenced by the tone of voice used by the commentator. In any event, as I have said (at [128]), the republisher's defamation is "essentially different" from the original publisher's.
Turning to the imputations, while I can see some room for argument that imputations 3(c) - 3(e), 5(c) and 5(e) and 7(c) may not differ in substance from the original imputations, I cannot accept the primary judge's conclusion that the balance of those imputations overlap with the original imputations. I would not, accordingly, agree with her Honour's conclusion that the District Court proceedings were brought in relation to imputations "largely identical" to those in the Daily Telegraph article, which the jury had found not to be conveyed.
It is important to recall the Anshun/Reichel considerations. Significantly the issue whether the respondents were liable as publisher of the radio broadcasts for either the original or the additional imputations has never been "fully litigated" (Stenhouse), "properly argued" or "lost" (Haines; O'Halloran). The appellant is not seeking to raise in the District Court proceedings "the very same question" which has been decided in the Supreme Court proceedings: cf Kuligowski. An outcome favourable to the appellant will not lead to the existence of contradictory judgments.

[29]

Law Reform (Miscellaneous Provisions) Act

This leaves only for consideration the respondents' claim that the District Court proceedings are an abuse of process because, if allowed to continue, they will be prejudiced in being unable to claim contribution from Nationwide pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act. It is unnecessary to rehearse that well-known provision. It is germane to record that in any proceedings for contribution pursuant to s 5(1)(c), the amount of the contribution recoverable from any person is such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage: s 5(2).
"Damage" in s 5(1)(c) is not to be equated to the "damages" awarded by a court, but is what the plaintiff suffers as the foreseeable consequence of the tortfeasor's act or omission. Where a tortfeasor's negligent act or omission causes personal injury, "damage" includes both the injury itself and other foreseeable consequences suffered by the plaintiff. Concurrent tortfeasors whose negligent acts or omissions occur successively, rather than simultaneously, may both be liable for the same damage in the s 5(1)(c) sense, being a foreseeable consequence of both torts, although one is liable for some only of the damage for which the other is liable and an award of damages against the one would necessarily be less than an award of damages against the other: Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 (at 527).
There was no suggestion that Nationwide and the respondents had combined to publish the Daily Telegraph article and the radio broadcasts so as to be joint tortfeasors: Thompson v Australian Capital Television Pty Ltd and Others [1996] HCA 38; (1996) 186 CLR 574 (at 580 - 581) per Brennan CJ, Dawson and Toohey JJ. It is arguable, however, that, if it had been found that the original imputations were conveyed by the Daily Telegraph article and if their republication in the radio broadcasts (assuming that fact also will be found) was a foreseeable consequence of the publication of the Daily Telegraph article, the separate publications could produce the same damage (in the sense of harm to the appellant's reputation) so that they were concurrent tortfeasors: Glanville L Williams, Joint Torts and Contributory Negligence, (1951) Stevens & Sons Limited (at 1). It may be, therefore, that the jury verdict that Nationwide was not liable in respect of the original imputations would bar a contribution claim by the respondents against Nationwide in respect of the damage caused by the publication of those imputations by the radio broadcasts. However, the same conclusion may not follow to the extent that the appellant establishes any of the additional imputations. This matter was not debated in argument and should not, in my view, be further considered in the absence of any findings and/or argument about the substratum of fact necessary to establish the respondents have been fully deprived of any contribution claim by virtue of the outcome of the Supreme Court proceedings.
In any event, if a balancing exercise has to be undertaken between the appellant's right to vindicate his reputation and the respondents' to seek contribution from Nationwide I would favour the former. Only in the most clear case will it be appropriate upon preliminary application to strike out proceedings as an abuse of process so as to prevent a plaintiff from bringing an apparently proper cause of action to trial: Broxton v McClelland and Another [1995] EMLR 485 (at 497-498). Where jurisdiction exists, access to the courts is a right. It is not a privilege which can be withdrawn otherwise than in clearly defined circumstances: Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 (at 252) per Deane J.
By allowing arguably defamatory imputations to be published about the appellant (in the case of the second respondent, twice on the same day), the respondents took the risk of being liable in damages to him: cf Dow Jones (at [192]) per Callinan J. If the appellant makes good his claims the respondents are liable as original publishers of the imputations on the radio broadcasts. The fact they may have lost a possible claim for contribution against Nationwide, the extent of recovery under which turns on the justice and equity of the circumstances, appears to me to carry somewhat less weight than preventing the appellant from pursuing his legal rights. It does not create the exceptional or extreme circumstance which would justify shutting out the appellant's claims in the District Court proceedings.

[30]

Conclusion

It is apparent from this analysis that the Daily Telegraph article and the three radio broadcasts gave rise to separate causes of action against different defendants, arising at different times (albeit on the same day). While there were similarities between the publications, they were not "the same defamatory matter": cf Harris (at [30]). Nor do the two proceedings raise the same or identical causes of action. The causes of action against Nationwide were for its liability as original publisher of the original imputations in the Daily Telegraph article. The issues concerning the radio broadcasts only arose as a component of the appellant's damages claim if the original imputations were republished in the radio broadcasts and if that was a foreseeable consequence of the original publication. In the District Court proceedings the causes of action are for the publication of the original and additional imputations by the radio broadcasts and the presumed damages which flow from their publication: Ratcliffe v Evans [1892] 2 QB 524.
To the extent the appellant included the radio broadcasts in his claim for damages in the Supreme Court proceedings, that claim was never fully litigated, or, indeed, litigated at all. His claims in respect of Nationwide's responsibility for the foreseeable consequences of its publication of the Daily Telegraph article was not abandoned, but could not be pursued because the appellant failed to establish his s 9 cause of action, namely that the original imputations were carried by the Daily Telegraph article.
Permitting the appellant to pursue the District Court proceedings will not give rise to conflicting judgments as the appellant seeks to establish, inter alia, that the original and additional imputations were carried by the radio broadcasts. The question whether the original and additional imputations were carried by the radio broadcasts has never, for the reasons I have given, been the subject of any judicial determination or judgment.
It was not unreasonable, in the Anshun sense, for the appellant not to have joined the respondents as defendants in the Supreme Court proceedings. He had distinct defamation claims against Nationwide and the respondents in respect of different publications.
Further, permitting the District Court proceedings to continue will not entail duplication of court time, as no court has previously considered whether any imputation arose from the radio broadcasts. In any event, the respondents have never previously been "vexed … for the same cause": see K R Handley, "Anshun Today" (1997) 71 ALJ 934 (at 938). In my view no issue arises which would call for the District Court proceedings to be struck out for efficiency reasons (ss 56-59 Civil Procedure Act; Dennis; Schellenberg). This is particularly so where s 48 of the 1974 Act expressly contemplates more than one set of proceedings against different defendants, even in respect of matter "to the same purport or effect" as that in respect of which damages have already been recovered.

[32]

Daily Telegraph Article: War on Terror

A stretch but Habib wants his pension
By LUKE McILVEEN
FORMER Guantanamo Bay inmate Mamdouh Habib took part in Sunday's City To Surf fun run despite the fact he is seeking a disability pension from Australian taxpayers.
Yesterday Habib was maintaining his hectic pace, addressing a meeting of radical university students, denouncing the US Government as terrorists and condemning Australia's hardline on suspects.
As our picture shows, the former terror suspect has a long way to go before convincing Centrelink that he is unfit to work.
Mr Habib, who claims he suffers clinical depression, ran the City to Surf last weekend in a personal best of 82 minutes and 25 seconds.
And he showed no signs of fatigue yesterday when he lectured students at the University of Western Sydney on the topic of war and terrorism, when he described the US as a "pack of terrorists".
Mr Habib finished the City to Surf in the top 20 per cent, beating 40,000 other runners.
Mr Habib has been locked in a running battle with Centrelink since he was flown back to Sydney from Cuba last January, a trip which cost taxpayers $225,000.
He demanded access to a disability pension but was told he would have to reimburse taxpayers for $11,000 in overpayments.
In 1999, claiming depression, Mr Habib quit his job as a smaller business owner and began receiving $470 a fortnight.
His family continued to receive the payments while he was in Pakistan and during his subsequent imprisonment in Guantanamo Bay.
Mr Habib's lawyer Peter Erman told the Daily Telegraph his client was still "working through issues" with Centrelink following a six-figure payment for an interview with the 60 Minutes program. Mr Habib claimed he suffered physical and mental torture at the hands of US soldiers at Camp X-Ray. He alleged he was routinely beaten unconscious, kicked and tormented with electric shocks.
He told about 100 students at a UWS rally yesterday that the US, not him, was the "real terrorists".
"All the trouble comes from the US. Look at Oklahoma City, who is blowing up the US? Their own people," he said.
He also warned Australia not to follow strict US terror laws saying: "They can pick you up, take you away for seven days… tell you they are going to rape your wife and kids."
Mr Habib has become a regular on the speaking circuit, addressing University of Technology students last month and a rally in March to mark the International Day of Action.
Mr Habib has admitted he was in Pakistan prior to the September 11 New York attacks but has refused to answer claims he trained with al Qaeda in Afghanistan until brought before a court.
Photograph with caption
Caption - On the go… Mamdouh Habib stretches before last weekend's City to Surf

[33]

Transcript 2GB Ray Hadley Morning Show (10.19am Thursday, 18 August 2005)

Ray Hadley : I had a number of emails over the past month uhhh about Mamdouh Habib and his battle with Centrelink so we went to Centrelink and they, of course, I think privacy reasons, couldn't tell us any about, anything about their dealings with Mamdouh Habib but then I had a number of emails this week from Monday on alerting me to the fact that while I was at the football on Sunday, old Mamdouh and his son were spotted on Channel 10 running in the City to Surf and all of them were asking the same question, is this man still trying to live off taxpayers ? Well the answer according to today's Telegraph is yes. He's still trying to get his hands on his disability pension. Uhhh now if you look at the picture in today's Telegraph you can see he's a long way to go convincing us he's actually unfit to work. He leads a rather active lifestyle , Mamdouh Habib, he ran the City to Surf in 82 minutes and 25 seconds, despite his claims he suffers with, what he calls, clinical depression. Now he's been locked, according to the Telegraph, in a running battle with Centrelink since he was flown back to Sydney from Cuba last January and incidently [sic, as in original transcript] that trip, as you know, cost tax payers $225,000.00. On his return Mamdouh Habib demanded access to a disability support pension but was told that he'd have to wait to reimburse tax payers for the $11,000 in over payment. You see, what happened was Mamdouh quit his job as a small business owner in 1999 and began receiving a $470.00 a fortnight pension. He claimed then clinical depression . I'm getting depressed talking about it.
His family continued to receive the payment at the time he was in Pakistan looking for a better school for his children and during his subsequent imprisonment in Guantanamo Bay . And don't forget that there was a very large payment he received from 60 Minutes for the interview that he did which told us and the reporters on 60 Minutes absolutely nothing. He's also busy on the lecture circuit going to universities to speak on the topic of war and terrorism . Now I don't think he's going there in the traditional sense invited by the Vice Chancellor; I would imagine that the students union invites him to go along and he tells them that the USA are a pack of terrorists … the citizens of the USA are a pack of terrorists. Just yesterday, he told 100 students at the University of Western Sydney that the US, not him, was the real terrorist. He said and I'll quote "All the trouble comes from the US. Look at Oklahoma City; who's blowing up the US, their own people". He neglected to mention September 11 of course. He also warned Australia not to follow strict US terror laws saying and I'll quote Mamdouh Habib "They can pick you up, take you away for seven days, tell you they're going to rape your family, your wife and your kids ." He's a half wit. This is the same man who's admitted he was in Pakistan prior to September 11 New York attacks but has refused to answer claims he trained with Al Qaeda in Afghanistan until he's brought before a court . Well, there's a simple thing here. This grub doesn't deserve a disability pension. He shouldn't be speaking to university students on the war and terrorism until he's come clean about his own activities.

[34]

Transcript 2UE John Laws Morning Show (10.33am Thursday, 18 August 2005)

John Laws : I'll tell you who is red hot - this Mamdouh Habib. Now this fellow I really would like to meet; he claims he was physically tortured by US soldiers during his time in Camp X-ray but, ahhhh, obviously it hasn't done him a whole lot of harm, he must have been referring to the rigorous fitness program they put the terror suspects through at Guantanamo because he is looking fit as fiddle to me, this fellow, and he's come, ahh, come out on Sunday and run (giggles) in the City to Surf. You realise he is trying to get himself a disability pension and he's just run in the City to Surf, uhhh, that's about 14km. He's done that in 82 minutes , not a bad effort for old Mamdouh Habib. He beat 40,000 people and yet he wants a disability pension? This is the same bloke who's been running a battle with Centrelink for a disability pension. The Daily Telegraph reports today that Centrelink have refused to grant him a disability benefit because he hasn't paid back $11,000.00 in overpayments that his family received while he was in Pakistan then Guantanamo Bay; he'd been receiving $470.00 a fortnight since 1999 after quitting his job as a small business owner because he claimed he was depressed . Well, maybe the run on Sunday helped but remember this is the bloke who made admissions that he was in Pakistan prior to the 9/11 attacks but he wouldn't answer any questions about whether or not he'd trained with Al Qaeda . Remember him on 60 Minutes, he was paid a huge quid by Channel Nine to do that interview and that's obviously not helping him in his cause to get sickness benefits out of Centrelink but he's just a, he's (giggles) he's not just blazing a trail as a runner, he's also been out filling the minds of university students with crap like this: "All the trouble comes from the US".This bloke is actually talking in universities in Australia. And we allow it to happen? Brendon Nelson where are you? He's saying stuff like this "All the trouble comes from the US, look at Oklahoma City, who's blowing up the US? - their own people ." It wasn't their own people who flew into the World, ahh, Trade Centre Towers. He also warned that Australia should not adopt strict terror laws from the US; he said they can pick you up, take you away for seven days, tell you they're gonna to rape your wife and kids , he's spruiking all this crap to universities to kids who are supposed to be at a place you're supposed to learn. Now what the hell is he doing there? (song)
Hey Mamdouh I don't wanna hear your tale of woe Hey Mamdouh Why did the Yankies let you go go go Something doesn't seem right Very bad your English grammar How come you're not in the slammer Hey my man What were you doing in Afghanistan? Were you up to something shady? Were you doing what you shouldn't do? Are you an insider working for Al Qaeda? Hey Mamdouh Tell us where the truth is at Hey Mamdouh But there's bugger all chance of that Will we ever know where the money came from? Why don't you shoot through and take that lawyer with you Mamdouh, are you friend or foe Hey Mamdouh
John Laws: Well we may well ask if he's friend or foe , he's certainly fit whatever he might be, running in the, uhhh, City to Surf, beats 40,000 people but he's knocking on the door of Centrelink saying he needs a disability allowance. I tell you what, who's responsible for inviting morons like this, this fellow, this Mamdouh Habib, to preach this rubbish I've been telling you about in universities. This is occurring in the University of Western Sydney and the Minister of Education should do something about it because it really is an absolute disgrace. (song)
Hey Mamdouh Tell us where the truth is at Hey Mamdouh But there's bugger all chance of that Will we ever know where the money came from? Why don't you shoot through and take that lawyer with you Mamdouh, are you friend or foe? Hey Mamdouh (Later, after the 11:00am news)
John Laws : Steve are you there? Steve : Yes, I am John. How are you mate? John Laws : I'm okay, what can I do for you? Steve: This, uhh, Mamdouh Habib…. John Laws: Yep. Steve : … I don't mind at all whether he gets this umm this disability payment. John Laws : Really? Steve : Well, providing that we can organise someone to go out and give him a disability. John Laws : (laughs) Yeah. Steve: That's be the first thing. John Laws : (laughs) Yeah, he's uhhh there's no doubt about it he's uuhhh hot as a stove, isn't he? I mean… Steve : He did look, he did look quite fit the other night. John Laws: He sure did and to run in the City to Surf and uhh come in in the top 20% and then say you're disabled and you need a disability pension is a joke. He ought to be laughed out of the country not out of the town.