Solicitors for the new defendant Allen Allen and Hemsley ORDER Orders made. JUDGE1 HUNT CJ AT CL The plaintiff (Henry Haines) commenced these proceedings by way of Statement of Claim on 16 December 1993. He named as defendants the Australian Broadcasting Corporation, Don Bennetts and an apparently unincorporated body identified as the Australian Film Institute of NSW. The second and third defendants have not filed an appearance, and I was informed that they have never been served.

The plaintiffs complaint has at all times related to the televising by the Australian Broadcasting Corporation ((1) I shall refer to the Corporation as "the ABC".) in 1990 and 1991 of a documentary film entitled "Donald Friend - The Prodigal Australian", in which the plaintiff is shown as an artist's model posing naked (but from the back only) whilst Donald Friend, the well known artist, is painting his portrait. The precise nature of the plaintiff's complaint as pleaded was not clear. He did, however, claim that the second defendant (as the maker of the film and the owner of the copyright in it) had portrayed him in the film without his consent, that the third defendant (as the film's distributor) had distributed it without his consent and that the first defendant had televised it without his consent, all of them thereby defaming his good character and reputation. In his particulars of loss, the plaintiff alleged:

"That the good character of the plaintiff had been deformed (sic) by the production and telecast of a film depicting the plaintiff's nude body."

The proceedings languished in the Defamation List for a long period with no progress being made by the plaintiff. Last April (sixteen months after the action commenced) the plaintiff sought leave to delete the third defendant, to add Australian Film Finance Corp Pty Ltd as a defendant and to file what was described as a "further amended Statement of Claim". The proposed pleading alleged against all three defendants which it named the publication by them of the documentary film by telecasting it throughout Australia on 22 July 1990 and 25 August 1991, whereby there was conveyed an imputation that:

"The plaintiff was the type of person who consented to appearing naked on a television programme to be telecast to a wide viewing audience."

A true innuendo - based upon the extrinsic fact that, by the time the publication took place, the plaintiff had become an accountant

• was pleaded in these terms:

"The plaintiff by allowing himself to appear naked on a television programme was unsuitable to be an accountant."

There were a number of problems as to the form of the proposed pleading, and particularly in relation to the form of the first imputation, but both the plaintiff and the first defendant joined in an application to Levine J that he determine by way of a separate trial pursuant to SCR Pt 31 r 2 the capacity of the matter complained of to convey those imputations. Not having been served, neither the second defendant nor the proposed third defendant participated in the argument. Levine J considered the first imputation as if it omitted the words "type of". He held that both proposed imputations were incapable of being conveyed, and the application to file the amended Statement of Claim was refused with an order that the plaintiff pay the first defendant's costs. The judge concluded his judgment with these words:

"Whilst it may be that there is some basis for the plaintiff being disturbed by questions of 'consent, and whilst it may be that there may be an issue in relation to copyright, none of the matters pleaded in the proposed Amended Statement of Claim in the light of the programme itself can found any cause of action as is sought to be made in defamation."

Mr Evatt, who appears for the plaintiff, conceded before me - correctly, in my view - that the film as shown on television is simply not defamatory of the plaintiff in any way. There is nothing indecent or otherwise disparaging in showing the bare buttocks of an artist's model when posing for a reputable painter, and that does not change because this is shown to the public in a straightforward documentary based upon the life and art of that painter.

Nothing daunted, leave has now been sought to file another amended Statement of Claim. As the third defendant originally named has never filed an appearance, there can be no objection to the plaintiff's application to delete it as such. I will order that its name be deleted. The addition of Australian Film Finance Corporation Ltd (as the proposed third defendant has since become known) ((2) I shall refer to the proposed third defendant as "the AFFC".) depends upon whether the claims now sought to be pleaded against it are such that they would not have been struck out if they had been pleaded in the original pleading.((3) Horton v Jones (No 2) (1939) 39 SR 305 at 309-3 10; Cadam v Beaverbrook Newspapers Ltd (1959) 1 QB 413 at 425; Commissioner for Railways v Bielewicz (1962) 63 SR 466 at 468; Heath v Goodwin (1986) 8 NSWLR 478 at 482.) They would be struck out (and hence the amendment would not be permitted) in various situations - such as where the claim in manifestly groundless,((4) cf General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 at 129.) or where the claim amounts to an abuse of process; and there are various manifestations of such abuse - for example: where the claim is being made for a purpose not within the scope of the process,((5) Grainger v Hill [1838] EngR 365; (1838) 4 Bing (NC) 212 at 221 [1838] EngR 365; (132 ER 769 at 773); Varawa v Howard Smith Co Ltd [1911] HCA 46; (1911) 13 CLR 35 at 91; Re Majory (1955) Ch 600 at 623; Goldsmith v Sperrings Ltd (1977) 1 WLR 478 at 489, 490, 503; Castanho v Brown and Root (UK) Ltd 119811 AC 557 at 567; Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 96, 98, 112; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 517, 530, 552-554.) and 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.((6) Williams v Hunt (1905) 1 KB 512 at 514; Thomson v Lambert (1938) 2 DLR 545 at 560; Meckiff v Simpson [1968] VicRp 7; (1968) VR 62 at 65; Maple v David Syme and Co Ltd (1975) 1 NSWLR 97 at 99.) The AFFC objected to the proposed amended Statement of Claim in part upon a slightly different manifestation of abuse of process, one which I shall describe once I have outlined the nature of the claims now made.

The ABC is no longer named as a defendant in the proposed amended Statement of Claim. An undertaking was given that a Notice of Discontinuance against it would be filed on or before 20 July, and it was accepted by Mr Evatt that the plaintiff would, in accordance with the Rules, have to pay the costs of the ABC as a consequence.((7) cf Pt 52 r 16. I understand that leave to file such a Notice has already been granted, but none has yet been filed.)

The proposed amended Statement of Claim pleads a number of claims for injurious falsehood and for misleading or deceptive conduct against both Mr Bennetts and the AFFC. This document was not well drafted, and the AFFC had a number of valid objections to it upon that basis. For example, it failed to plead as a material fact in relation to the claim for injurious falsehood that the plaintiff had been caused actual damage.((8) Ratcliffe v Evans (1892) 2 QB 524 at 527-528; Royal Baking Powder Co v Wright, Crossley and Co (1900) 18 RPC 95 at 99, 103, 104; Norton v Hoare (No 1) (1913) 17 CLR 3 10 at 324-325.) Giving particulars of special damages under the general claim for damages does not constitute pleading actual damage as a material fact. The importance of actual damage as an element of the tort of injurious falsehood is that, because the tort is not concerned with injury to either reputation((9) Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 694.) or feelings,((10) Fielding v Variety Inc (1967) 2 QB 841 at 850.) damages for injurious falsehood would appear to be restricted to the recovery of that actual damage.((11) Ibid (at 850). The position is the same in relation to slander not actionable per se at common law, where general damages apparently may not be awarded in addition to the special damage proved: Herrick v Lapham (1813) 10 Johns. (NY) R 281 at 284 (a decision on an appeal to the Supreme Court of the State of New York); "Gatley on Libel and Slander" (8th Edn, 1981), par 1460; Spencer Bower "A Code of the Law of Actionable Defamation" (2nd Edn, 1923), at pp 152-153 (f/n(v)); "Street on Torts" (9th Edn, 1993), at p 469.)

There are other defects. There was no description in the pleading of what was shown in the film and which was claimed to give rise to the false and misleading or deceptive representation upon which the new claims were based. Such must be pleaded where the visual images give rise to, or give support to, the claim made - be it defamation or otherwise.((12) Gordon v Amalgamated Television Services Pty Ltd (1980) 2 NSWLR 410 at 415-416.) When an attempt was made on the day before the hearing to rectify that omission, the description was quite inadequate in that it failed to refer to material in the film which materially qualified the effect of that description.((13) Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd (1971) 1 NSWLR 472 at 477, 480; Gordon v Amalgamated Television Services Pty Ltd (at 414).) The pleading failed to give proper particulars by which the defendants could know the basis upon which each of them was sought to be made responsible for the specific publications identified in the pleading - a point of some considerable importance in this case, as the primary publisher was the ABC.((14) There are various ways in which - assuming it to have been the publisher of the film at an earlier time - the AFFC could be made liable for the re-publication of the film by the ABC; see, generally: Speight v Gosnay (1891) 60 LJQB 231 at 232; Ratcliffe v Evans (at 531, 533); Dempster v Coates (Court of Appeal, 11 April 1990, unreported) at 12; Slipper v BBC (1991) 1 QB 283 at 296. These cases are discussed in Williams v John Fairfax Group Pty Ltd (1991) A Def R s. 51,035 at 42,089-91. The AFFC is entitled

• as is Mr Bennetts - to know precisely the basis upon which the plaintiff asserts that it and he are liable in this case.) The pleading also made a claim for misleading or deceptive conduct against Mr Bennetts based upon s 52 of the Trade Practices Act 1974, as a principal and not as an accessory,((15) cf s 75B.) ignoring the fact that s 52 is directed to corporations and not individuals.((16) The AFFC does not, of course, assert any interest in the claim made against Mr Bennetts, but it drew attention to the defect as yet another illustration of the indifference with which the plaintiff's pleading has been framed: cf Armitage v Double Bay Newspapers Pty Ltd (Hunt J, 26 September 1991, unreported) at 4.)

All but one of these complaints has now been substantially (if not completely) rectified, the remaining omission relating to particulars of publication. Those particulars supplied by letter are wholly inadequate. I will order such particulars to be supplied.

The first submission made by the AFFC was that, even assuming that it could be made liable for the actions of the ABC in telecasting the film and selling video recordings of it, the claims made for injurious falsehood and for misleading or deceptive conduct constitute an abuse of process. Although the plaintiff subsequently changed the basis upon which those claims were made as a result of that submission, it is necessary to refer to the nature of it because that sequence of events becomes important upon the issue of costs.

The imputation in the first of the proposed amended pleadings which Levine J considered was that:

"The plaintiff was (a) ... person who consented to appearing naked on a television programme to be telecast to a wide viewing audience."

The judge held that the film was incapable of conveying such an imputation. The representation in the proposed pleading which I was asked to consider - which is alleged to be false (for the injurious falsehood claims) and misleading or deceptive (for the misleading or deceptive conduct claims) - was that:

"... the plaintiff consented to appear naked on television." (par 2) or that:

"... the plaintiff consented to pose naked for a television programme." (par 5(b))

The test for determining the capacity of published matter to convey a particular imputation furnishes guidance and assistance in determining, for the purposes of s 52 of the Trade Practices Act, whether the representation for which a plaintiff contends was made by that matter.((17) Typing Centre of NSW Pty Ltd v Northern Business College Ltd (1989) ATPR 40-943 at 50,286; FAI General Insurance Co Ltd v RAIA Insurance Brokers Ltd [1992] FCA 219; (1992) 108 ALR 479 at 495-496.) The same must inevitably be said in relation to whether the representation was made which is asserted to be false in the injurious falsehood claims. There is no difference in substance between the imputation and the representation. The plaintiff had thus already had the capacity of the film to convey such a representation found against him.

The AFFC is not, of course, entitled to the benefit of the ruling by Levine J upon the basis of any principle 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.((18) Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531.) There is nevertheless a line of authority to which I have been referred which demonstrates that, notwithstanding the absence of any issue estoppel, a party's attempt to re-litigate against another party an issue which he has already lost may amount to an abuse of process.

In Reichel v Bishop of Oxford,((19) (1889) 14 App Cas 259.) the plaintiff (the Rev Oswald Reichel) was the vicar of Sparsholt. After a scandal had arisen with regard to the morality of his conduct, the Bishop informed him that he must either submit to an inquiry into his conduct or cease to hold his benefice as vicar. The plaintiff then executed a deed before witnesses resigning his benefice, and forwarded it to the Bishop upon the understanding that his formal acceptance of it would be postponed. Before it was so accepted, the plaintiff executed a further deed purporting to revoke his resignation. The resignation was nevertheless then accepted by the Bishop. The plaintiff brought proceedings against the Bishop seeking a declaration that he remained the vicar, but he was unsuccessful upon the basis that the resignation had been complete with no more than a postponement of the Bishop's formal assent to it, and that his resignation had been irrevocable.((20) (at 267-268, 269, 271-272).) Subsequently, the Rev John Magrath (who had been appointed to the benefice of the Vicarage of Sparsholt as successor to the Rev Reichel) brought proceedings against Reichel for a declaration that he (Magrath) was the vicar and for an injunction to prevent Reichel from depriving him of the use and occupation of the house and lands comprising the ecclesiastical living to which he had been appointed. Reichel set up in his defence the same claim which he had unsuccessfully made against the Bishop. It was held that the defence was an abuse of procedure which should be struck out, leading to the declaration and injunction sought against him: Reichel v Magrath.((21) (1889) 14 App Cas 665 at 668-669.) Lord Halsbury LC said((22) (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 McIlkenny v Chief Constable of the West MidlandS,((23) (1980) 1 QB 283.) the plaintiffs had been convicted of murder arising out of the bombing of two Birmingham hotels. At their trial, objection had been taken to the admissibility of signed records of interview in which they made confessions as to their part as ERA supporters in planting the bombs, upon the basis that the confessions had been made following assaults by police officers and were thus not voluntary. Following a voir dire examination, the trial judge (Bridge J) held that the Crown had established that no such assaults had taken place and that the statements were voluntary. These actions were brought by the plaintiffs claiming damages for the assaults which were already the subject of adverse findings by Bridge J. They sought to rely upon evidence which, although available at the time, had not been given during the voir dire examination and which did not throw any reasonable doubt upon the correctness of Bridge J's decision. The Court of Appeal held (by majority)((24) (at 324).) that the claims should be struck out on the ground of issue estoppel. Such a ground would not succeed in Australia because the Chief Constable would not be held to be a privy of the Crown,((25) (as Goff LJ held, at 327).) but both Lord Denning MR and Sir George Baker also held(26) (at 323, 346-347)) that it would in any event be an abuse of process to allow the assault issue to be re-litigated, and Goff LJ (the dissentient upon the issue estoppel ground) upheld the appeal striking out the claims as an abuse of process.((27) (at 338-339). Its Lordship had (at 330-332) accepted the principle laid down in Reichel v Magrath.)

The plaintiffs' appeal to the House of Lords, reported as Hunter v Chief Constable of the West MidlandS,((28) [1981] UKHL 13; (1982) AC 529.) was dismissed. The speech of Lord Diplock, with which the other members of the House of Lords agreed, made it clear that issue estoppel was inappropriate where the proceedings were not between the same parties or their privies,((29) (at 540-541).) but the decision of the Court of Appeal to strike out the plaintiff's Statements of Claim was upheld upon the basis that it was an abuse of process, being no more than a collateral attack in civil proceedings upon the decision of a criminal court of competent jurisdiction, and thus against public policy.((30) (at 542).) Reichel v Magrath was again accepted as stating the correct principle,((31) (at 542).) as was the judgment of AL Smith LJ in Stephenson v Garnett:((32) (1898) 1 QB 677 at 680-681.)

"... the court ought to be slow to strike out a Statement of Claim or Defence, and to dismiss an action as frivolous and vexatious, yet it ought to do so when, as here, it has been shown that the identical question sought to be raised has already been decided by a competent court. "

Agreement was expressed with Goff LJ that evidence which had not been given in the earlier case could be considered in a collateral attack upon the finding of a court of co-ordinate jurisdiction only if it was such as "entirely changes the aspect of the case The relevant principle relating to abuse of process was stated by Lord Diplock in this way:((33) (at 536).)

"My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. "

His Lordship went on to make it clear that the categories of circumstances in which the court has a duty (not merely a discretion) to exercise "this salutary power" were not fixed.

In Regina v Balfour; Ex parte Parkes Rural Distributors Pty Ltd,((34) (1987) 76 ALR 256.) the prosecutor sought to re-litigate in the Federal Court an issue as to the validity of a repayment certificate upon which he had already lost before me in this Court. Not all parties in the Federal Court had been parties in the Supreme Court. Wilcox J held((35) (at 26-4)) that this was an abuse of process, relying upon Regina v Governor of Pentonville Prison; Ex parte Tarling((36) (1979) 1 WLR 1417 at 1422-1423) and Port of Melbourne Authority v Anshun Pty Ltd,((37) [1981] HCA 45; (1981) 147 CLR 589 at 603) but the principle expressed by the High Court in the second of those cases depends upon the failure of the plaintiff in the later action to raise the issue sought to be determined in that action as a defence in the earlier action between the same parties where it was unreasonable not to have done so.((38) Ibid (at 602-603)) That is not the present case, and I see little of assistance in this case.

In South Australian Housing Trust v State Government Insurance Commission,((39) (1988-1989) 51 SASR 1) the plaintiff had earlier been sued in negligence for injuries caused to a child as a result of a defective stove. In that earlier action, it was held against the plaintiff in this action that it had been notified of the dangerous nature of the defect to the stove giving rise to the injury prior to that injury being sustained. The present action was brought by the plaintiff for indemnity under a policy of insurance, which required the plaintiff as a condition of the insurance to take reasonable precautions to prevent injury and to maintain such appliances. The defendant had not been joined by the plaintiff in this action as a third party in the negligence action. It successfully argued at first instance that it was an abuse of process to permit the plaintiff to challenge the determination made against it in the earlier action.((40) (at 10-11)) On appeal to the Full Court, the principle laid down in Reichel v Magrath was accepted,((41) (at 18-19)) but it was held that the issue in the earlier action between the injured plaintiff and the plaintiff in this action was quite different to that in this action between the plaintiff and its insurer.((42) (at 19-20); see Fraser v BN Furman (Productions) Ltd (1967) 1 WLR 898 at 905)

In North West Water Ltd v Binnie and Partners,((43) (1990) 3 All ER 547) both the plaintiff (a water authority) and the defendants (a firm of consultant engineers) had earlier been sued in negligence for the death of and injury to a number of people caused by an explosion which occurred in a valve house designed by the defendants for the plaintiff. In third party proceedings in that earlier action, the plaintiff in this action had successfully claimed that it was the defendants' and not its own negligence which was responsible for the explosion. In this action, the plaintiff claimed compensation for the property damage also caused by the explosion. The defendant's defence denying that negligence was struck out both upon the basis of issue estoppel and upon the basis of abuse of process. Once again, the issue estoppel ground would not succeed in Australia, this time because the issues were not identical,((44) Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446; Ramsay v Pigram (1967) 118 CLR) but the principle laid down in Reichel v Magrath was accepted in relation to the alternative claim of abuse of process. It was held((45) (at 554-555)) that the defendant had had a fair and full opportunity in the earlier action of showing that they were not negligent, and that they should not have another opportunity in this action to relitigate that issue.

In Sea Culture International Pty Ltd v Scoles,((46) [1991] FCA 523; (1991) 32 FCR 275) a director of the plaintiff company had earlier brought proceedings in the WA Industrial Relations Commission in which he alleged in his pleadings that there had been no agreement between him and another party, such allegation being contrary to the plaintiff company's claim against the defendants in this action, which asserted that there was such an agreement. The precise issues are not easily discovered from the report, and it does not appear whether the earlier proceedings had been concluded. The case was cited mainly for what French J said in relation to the power of a court to control its own process and to prevent misuse of it. What his Honour said was this:((47) (at 279))

"The possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed. ... An attempt to litigate in the court a dispute or issue which has been resolved in earlier litigation in this or another court or tribunal may also, according to the circumstances, constitute an abuse of process even if not attracting the doctrines of res judicata or issue estoppel.

Underlying the power that courts have assumed to stay or dismiss proceedings for abuse of process is a policy of preventing waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes. There is, in my opinion, another element to be considered and that is the necessity to maintain confidence in and respect for the authority of the courts. "

Such an approach relating to allegations made in pleadings cannot, of course, be taken too far,((48) Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 85-86; Jamieson v The Queen [1993] HCA 48; (1993) 177 CLR 574 at 579-580) and it is significant that, in this particular case, the judge thought that the inconsistency raised only a matter of credit and did not constitute an abuse of process.

In Re Thomas Christy Ltd (in liq),((49) (1994) 2 BCLC 527) the managing director of that company (a man named Manson) sought to prove in the liquidation for a sum representing his claim for wrongful dismissal. Mr Manson had previously been the respondent to an application by the Secretary of State for his disqualification as a director by reason of his conduct as such. A finding had been made against him that he was unfit to be concerned in the management of a company, having acted dishonestly or improperly in various respects. Such findings were held in this action to have both individually and collectively given rise to the right to dismiss him summarily as the managing director.((50) (at 530)) The liquidator was not a privy of the Secretary of State.((51) (at 531)) Mr Manson's attempt to re-litigate that issue in his wrongful dismissal claim was held to be an abuse of process, Jacob J saying this:((52) (at 537))

"... 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'.((53) This is a reference to the speech of Lord Diplock in Hunter v Chief Constable of the West Midlands (at 536).) The Companies Court of the Chancery Division of the High Court has found, after a full trial, Mr Manson guilty of the five wrongful acts specified above. To allow re-litigation of those 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. Doing a case twice over would make no sense to him: all the more so if he was told that the costs of this would in all likelihood be borne by innocent creditors of the company which Mr Manson ran. During the hearing I therefore ruled that such re-litigation should not be permitted.. "

In both that case and the Sea Culture International Case, the reference to the effect of such re-litigation of issues upon the scarce resources of the courts and upon the rights of other litigants reflects what has now been said by many courts as to the relevance of such matters to the decision whether to grant leave to amend.((54) Ketteman v Hansel Properties Ltd (1987) AC 189 at 219-220; SPCC v Australian Iron and Steel Pty Ltd (1992) 29 NSWLR 487 at 495; Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625 at 629, 636.)

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 and elaborated in the cases to which I have referred. 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. The principle does not work in reverse to enable the party who won the issue in the earlier case to prevent it being litigated in the later proceedings by someone who was not a party 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 it is readily apparent from whatever records there are of the earlier case 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 that case. In normal circumstances, the decision disposing of the issue must have been a final one - by which I mean that it is not subject to appeal.((55) The filing of a notice of appeal may clearly be seen in some circumstances as merely seeking to delay the inevitable.) 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. As most of the cases have emphasized, all the circumstances of the determination in the earlier case may be considered, and there can be no definitive statement of the circumstances which will inevitably lead to a finding of abuse of process.

In the present case, the imprecise terms in which the imputation considered by Levine J was cast provided a problem, by the introduction of the phrase that the plaintiff was "the type of person" who consented, but the judge gave consideration to the imputation without those words so that there was a sufficiently identical coincidence between the imputation held by Levine J to be incapable of being conveyed by the film and the representation upon which reliance was sought to be placed in the pleading which I was asked to consider. There is no doubt that it was an issue which was necessarily determined, and one of fundamental importance to the plaintiff's case. It was an issue of law determined by way of a separate trial with the consent of the parties((56) Pt 31 r 2) and, from the judgment given by the judge, it was properly argued in the sense in which I have discussed that term. A direct appeal lay from that decision to the Court of Appeal by leave only,((57) Supreme Court Act 1970, s 103) but a party may always argue on an appeal as of right from the judgment in the action as a whole that the decision in the separate trial was wrong.((58) Pt 51 r 15; David Syme and Co Ltd v Lloyd (1984) 3 NSWLR 346 at 349, 358, 359.) To preserve such a right of appeal, however, the unsuccessful party must leave the imputation in his pleading.((59) Anderson v Mirror Newspaper Ltd (No1)(1986) 6 NSWLR 99 at 111-112.) Here, the plaintiff abandoned his claim that such an imputation arose, and in ordinary circumstances must be taken to have abandoned any wish to appeal. The decision of Levine J was, moreover, clearly right. The most which was conveyed by the film was that the plaintiff knew that he was being filmed posing naked (but from the back only) while Donald Friend painted his portrait. Whether the conclusion was capable of going further was the subject of some debate before me, and I shall refer to that issue later. In no way, however, could it be concluded that the plaintiff knew that it was being recorded for subsequent telecasting to a wide viewing audience as the imputation asserted. This was expressly conceded by Mr Evatt during the argument before me.

If the pleading which I was asked to consider had remained in its original form, and if it had been the plaintiff's original pleading, I would have struck it out as an abuse of process. Mr Evatt, however, at the conclusion of the argument indicated that the plaintiff would no longer rely upon the representation as pleaded, and he proposed an amended and substantially different representation to which I will turn later. The first submission by the AFFC must in those circumstances be rejected.

The second submission made by the AFFC was that the plaintiff was by now out of time in bringing his claims for misleading or deceptive conduct in June 1990 and August 1991. Both s 82(2) of the Trade Practices Act and its NSW equivalent s 68(2) of the Fair Trading Act 1987 - require any action for loss or damage suffered by such conduct to be brought within three years after the date on which the cause of action occurred. It was submitted that, as loss or damage includes damage to reputation,((60) Brabazon v Western MO Ltd (1985) 58 AIR 712 at 719-720 (Toohey J). in Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1986) 65 ALR 500 at 523-525, Wilcox J appears to have treated damage to reputation as no more than a consequential loss.) the cause of action was complete upon the publication of the representation by the ABC, and thus the plaintiff is already out of time and his claim is manifestly groundless. That does not, however, appear to be the basis upon which the plaintiff seeks to make out his case. Mr Evatt has, as I noted earlier, conceded that the programme is not defamatory of the plaintiff, and it seems that the plaintiff will assert that his cause of action here was complete only when he suffered actual financial loss. There is nothing before me to say when that was. In any event, it is undesirable that limitation questions of this kind should be decided in interlocutory proceedings such as these in advance of the action, except in the clearest of cases.((61) Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 533.) This is not such a case, at least not at this stage without any sufficiently precise indication from the plaintiff as to how his case will in fact be put.((62) The particulars most recently supplied do not identify any dates of the actual payments alleged to have been made by the plaintiff as a consequence of the publication of the false representation.) I am not prepared to refuse leave to amend upon the basis of this submission.

The plaintiff has not sought to join the AFFC pursuant to SCR Pt 20 r 4(3) that is, by reason of any mistake in the name of the correct party. No evidence was led to suggest that such a mistake had been made. The claim made against the apparently unincorporated Australian Film Institute of NSW in the original Statement of Claim is that it distributed the film (presumably to the ABC). No such claim is made against the AFFC. What is sought to be done is to introduce a new party and new causes of action. The responsibility of the AFFC has so far been identified only as having participated in the making of the film and as one of the owners of the copyright in it. So far as the AFFC is concerned, therefore, the commencement of the proceedings against it is tile date upon which it is added as a party.((63) Pt 8 r 11(3)) Were the position otherwise, I would have ordered - pursuant to Pt 20 r 4(5A) - that the amendment is to take effect only as from the date when the further amended Statement of Claim is filed pursuant to the leave to be granted.((64) cf Middleton v O'Neill (1943) 43 SR 178 at 186; Thompson v Pacific Acceptance Corp Ltd (1962) 80 WN 773 at 778. Nothing said in Baldry v Jackson (1976) 2 NSWLR 415 at 419 or in Proctor v Jetway Aviation Pty Ltd (1984) 1 NSWLR 166 at 174-175, 181, 183 affects the spirit in which those cases would operate when recourse is had to Pt 20 r 4(5A), which was clearly inserted as a consequence of the decision of the Court of Appeal in Fernance v Nominal Defendant (1989) 17 NSWLR 710.) That is because of the serious delay by the plaintiff in commencing his action and the frank admission by Mr Evatt that, when told that the film was not defamatory of him, the plaintiff gave instructions to the effect that any cause of action would do.

There is an associated question, this time in relation to the claim for misleading or deceptive conduct arising out of the sale of videotapes of the film through ABC shops in January of this year.((65) This is not a matter raised by the AFFC, but I have thought it appropriate to refer to it.) It is a fundamental principle that a plaintiff cannot sue in relation to a cause of action which is incomplete at the time when he issues his process.(66) Re Keystone Knitting Mills' Trademark (1929) 1 Ch 92 at 103; Eshelby v Federated European Bank Ltd (1932) 1 KB 254 at 262, 268 (affirmed (1931) WN 2441; Wigan v Edwards (1973) 47 ALJR 586 at 592, 596; Baldry v Jackson (at 419).) The process in this case was, as I have said, issued on 16 December 1993. However, it seems to me that, if the commencement of the proceedings against the AFFC does not occur until the further amended Statement of Claim is filed pursuant to leave, this principle would not apply to those causes of actions which were completed after the original Statement of Claim was issued and before the amendment took effect.

On the other hand, so far as Mr Bennetts, is concerned (he already being a party although not yet being served), neither Pt 8 r 11 (3) nor Pt 20 r 4(5A) can apply, and any amendment made against him must necessarily date back to the date of the original Statement of Claim; it appears that I have no discretion under the Supreme Court Rules to delay the commencement so far as he is concerned.((67) Baldry v Jackson (at 419); Proctor v Jetway Aviation Pty Ltd (at 174-175, 181, 183)) Notwithstanding that Mr Bennetts has not yet been served, and thus has had no participation in this application, I regard it as manifestly unfair that he should be so disadvantaged. I accordingly will not permit any amendment to be made against Mr Bennetts which introduces a cause of action which only became complete after 16 December 1993.

The remaining submissions relate to the yet further draft amended Statement of Claim proffered by the plaintiff as a result of the submissions put during argument before me. In this document, reliance is no longer placed upon s 52 of the Trade Practices Act, because Mr Bennetts is not subject to that Act; instead, the plaintiff relies upon the various statutes in each State equivalent to this State's Fair Trading Act. The most significant alteration is in the nature of the representation alleged to be false and misleading or deceptive, which is now in the following terms:

"... the plaintiff was an artist's model willing to be filmed posing naked from the back for a reputable artist knowing that the film would be likely to be publicly exhibited "

There are three minor issues raised by the AFFC in relation to this document which may be dealt with briefly: (i) The name of the AFFC is still not shown correctly as a defendant; it should be named as "Australian Film Finance Corporation Ltd".

(ii) Whilst the representation pleaded in par 2 has been amended as already indicated, the particulars of falsity given still refer to the falsity of the representation as originally put forward (that the plaintiff had agreed to appear naked on a television programme), as do the particulars given in par 5 of the misleading or deceptive nature of the representation. This is very sloppy drafting, and it must be corrected.

(iii) The description of the film in annexure "A" is still economical, to the extent that its author is obviously a follower of some minimalist tradition. There is nothing in the present description to suggest - as the film itself suggests that the plaintiff knew that he was being filmed. As this is fundamental to the plaintiffs case, this omission must be rectified. The AFFC complains that there should also be a specific reference made to particular images from which the inference is sought to be drawn that the plaintiff was "posing" and that he was "willing to be filmed", but this complaint misconceives what must be pleaded in such a case. It is sufficient to set out conclusions of fact in describing what is seen on the film rather than the specific images from which such conclusions are to be drawn.((68) Gordon v Amalgamated Television Services Pty Ltd (at 415-416)) None of the images to which attention has been drawn by the AFFC is capable of materially altering or qualifying the nature of the representation pleaded, and therefore they need not be described.((69) Ibid (at 414-415))

I turn now to the more substantial issues raised by the AFFC. The first relates to the form of the representation now pleaded. I accept that, as with imputations, in a defamation claim, the representation in an injurious falsehood claim or a misleading or deceptive conduct claim must be pleaded with precision, so as to avoid the likelihood of confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends.((70) cf Singleton v Ffrench (1986) 5 NSWLR 425 at 433, 435; Whelan v John Fairfax and Sons Ltd (1988) 12 NSWLR 148 at 155; Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135 at 137-138,155.) As a defendant can only plead a denial of the two causes of action now pleaded by the plaintiff, the confusion to be avoided relates to the trial rather than at the pleading stage. The representation now pleaded was the result of a continuing discussion during the argument before me. I have no doubt that a mature reflection by the pleader could improve upon its formulation.

The AFFC takes issue first with the word "willing", in the phrase "was willing to be filmed". It was originally suggested during argument that it should read "was ... prepared to be filmed", but the word "willing" was substituted because of the complaint made by the AFFC - justified, in my view

• that "prepared" may be imprecise. However, I am not satisfied that the complaint since put forward in relation to the word "willing" has been made good. The argument is based upon the Macquarie Dictionary's definition of "willing", which suggests two different interpretations - (a) consenting, without being particularly desirous, and (b) cheerfully consenting. One can always, of course, find dictionary definitions in order to create such a doubt as to what is intended by a word when viewed in isolation, but to do so (as the AFFC has here) is to ignore the context in which the word is used. In its context here, the word "willing" means no more than that the plaintiff, with knowledge that he was being filmed, permitted the film to be made of him. I see no imprecision in that.

The AFFC next takes issue with the word "publicly", in the phrase "likely to be publicly exhibited". Based again on the Macquarie Dictionary definition of "public", the argument is that it could mean that the film was likely to be exhibited to the entire community or only to a particular section of the public. Again, the argument ignores the context in which the word is used, in which it means no more than exhibited otherwise than in private - that is, otherwise than to the plaintiff himself or to particular persons with his approval. There is no imprecision in that either.

The next substantial issue raised by the AFFC relates to the capacity of the film to convey the representation pleaded. Although the proposed pleading is not yet on the file, the parties joined in a request that I determine the capacity of the film to do so as if by way of a separate trial pursuant to Pt 31 r 2. Both parties were content that I base my decision upon the film rather than upon its inadequate description in the proposed pleading. As I understood it, the argument of the AFFC is that: (1) the representation requires an inference to be drawn upon an inference, (2) the second inference is no more than "merely the product of illegitimate speculation",((71) The quotation comes from Bond Corporation Holdings Ltd v ABC (1989) 4 BR 328 at 335 (A Def R para 50,050 at 40,336)) and (3) the film is in any event incapable of suggesting that the plaintiff was willing to be filmed.

A plaintiff may not rely upon a defamatory imputation which requires the reader or viewer first to draw an inference from what was published and then to draw a further inference from the inference which he drew for himself.((72) Lewis v Daily Telegraph Ltd (1964) AC 234 at 274, 286) I accept that that principle is equally applicable to actions for both injurious falsehood and misleading or deceptive conduct. The AFFC says that the first inference is that the plaintiff knew that he was being filmed, and the second is that he knew that the film was likely to be exhibited publicly. I do not see this as being an inference upon an inference. The camera angles adopted make it clear that the plaintiff knew that he was being filmed.((73) I describe the camera angles later.) That is an implication made by the film, not an inference drawn by the viewer.((74) The distinction is discussed in Bargold Pty Ltd v Mirror Newspapers Ltd (1981) 1 NSWLR 9 at 12.) The only inference relates to the plaintiff's realization as to the purpose for which the film being made was likely to be used.

As to whether that inference is no more than the product of illegitimate speculation, the AFFC puts forward a number of different possibilities as to the purpose for which the film could have been made: as a home video for the person making it; as a gift for Donald Friend; as a gift to the plaintiff himself for having agreed to pose as a model; as something to be incorporated in a time capsule (perhaps never to be found); and as something to be exhibited publicly. The viewer, it is said, would have to be satisfied that the last was "more probably than not" the purpose for which the film was made, and that this was sheer speculation. Such a submission confuses the plaintiff's onus of proving that more probably than not the viewer would draw the inference for which he contends with the nature of the inference itself. The fact that more than one inference is available does not mean that the film is incapable of conveying the imputation (or representation) based upon the particular inference for which the plaintiff contends. I am satisfied that the inference for which the plaintiff contends is a reasonable one and that it is open to the jury to consider.

That leads me to the last part of the AFFC's argument, that the film is in any event incapable of suggesting that the plaintiff was willing to be filmed. As I understand the argument, it is that the viewer could not assume that the consent of an artist's model would be required or even sought before he was filmed posing naked. This is the reverse of what was held in Tolley v Fry((75) [1931] UKHL 1; (1931) AC 333 at 339, 344.) - and applied at the trial in Ettingshausen v Australian Consolidated Press Ltd((76) The summing-up was given on 10 February 1993; the relevant passage is quoted by Clarke JA in Australian Consolidated Press Ltd v Ettingshausen (Court of Appeal, 13 October. 1993, unreported) at p 3.) -that there is within the community a general attitude that no apparently responsible and reputable magazine such as that published by the defendant in the Ettingshausen Case would have acted so irresponsibly and in such bad taste as to have published a photograph of someone such as the plaintiff (a well respected footballer), showing his penis, unless it first had that person's full consent to do so. Here, the argument is that the general attitude within the community is that no-one would have thought it necessary to obtain the consent (or assent) of an artist's model to show him posing naked from the back for a respectable artist to paint him. The existence of such a general attitude as that for which the AFFC contends is very much a jury question but, even if the jury concludes that it does exist, I am satisfied beyond any doubt that it still remains open to the jury to find that the ordinary reasonable viewer would conclude that the plaintiff nevertheless had willingly allowed the film. to be made knowing that it was likely to be publicly exhibited. The representation for which the plaintiff contends is therefore available to the jury.

I should record the particular basis upon which I have concluded that it is open to the jury to find that the plaintiff knew that he was being filmed whilst posing naked for Donald Friend to paint his portrait. The plaintiff's case - as revealed in the particulars and as enlarged during the argument - is that, at the time when he posed for Donald Friend, he was studying to be an accountant but was working as a waiter. He was asked by someone whom he believes was Mr Bennetts (or someone on his behalf) to act as an artist's model for Donald Friend, not by Mr Friend himself. He did not see a camera, which he says must have been concealed, and in fact he had no knowledge that he was being filmed. The film itself, however, suggests clearly that the position was otherwise

• whatever may be the truth of the matter. The camera is not in a static position throughout. It shows both the plaintiff and Donald Friend from different angles, suggesting that - at least when Donald Friend was being filmed - the camera must have been close to and clearly visible to the plaintiff. There is one particular shot of the plaintiff where the camera is close to and somewhat beneath the plaintiff's outstretched arm. From the upwards angle of this shot, it would appear to be physically impossible, whatever type of lens was used, for the camera to have been more than a few feet away from the plaintiff. ((77) There is another shot taken of Donald Friend from behind and between the outstretched arm and the body of a male artist's model who may have been the plaintiff (his head is out of frame). The model is seated facing Donald Friend (who is painting him), with a cloth draped around his waist. The portrait shown as being painted by Donald Friend at this time is different to that earlier shown as being painted of the plaintiff, although the face on this portrait is not dissimilar to the plaintiff's face.) No doubt the plaintiff will produce some explanation as to how - despite all of this he nevertheless had no knowledge that he was being filmed, but the ordinary reasonable viewer would not have known of any such explanation.

I should also record a complaint made by the AFFC that this action should no longer be in the Defamation List now that the pleaded causes of action do not include defamation. However, it has always been the general practice for injurious falsehood claims to be included in the Defamation List because of the features which they share in common with defamation claims.((78) See, for example: swimsure (Laboratories) Pty Ltd v McDonald (1979) 2 NSWLR 796; McCabe Enterprises Pty Ltd v Ward (Hunt J, 29 February 1980, unreported); AB Parry and Sons Pty Ltd v The KG Murray Publishing Co Pty Ltd (Hunt J, 10 April 1980, unreported); Airco Manufacturing Pty Ltd v United Telecasters Sydney Ltd (Hunt J, 17 November 1982, unreported).) The tort of injurious falsehood is also dealt with in most of the well known textbooks on defamation; those who appear in such cases usually appear also in defamation cases. The expertise required is of the same kind. It is convenient for such actions to continue to be included in the Defamation List. The position of the misleading or deceptive conduct cases is not so clear, in that the problems in having them heard by a jury together with defamation or injurious falsehood cases are well nigh intractable. But that does not mean that, where the plaintiff has pleaded such a claim together with a defamation or injurious falsehood claim, the action which includes both should not continue to be included in the Defamation List. The decision as to whether such claims should be heard by a jury together with the other claims can be made in each case when it is ready for trial.

Finally, I turn to the question of costs. Such was the abuse of process in this case before the plaintiff elected very late in the piece to amend his claim yet again that I would have ordered him to pay the costs of the AFFC on an indemnity basis, had it not been for the unsuccessful arguments put by the AFFC in relation to the limitation issue and as to the form of the representation pleaded in the most recently proffered pleading and the capacity of the film to convey that representation. Upon those issues, the AFFC wholly lost. In the circumstances, I order the plaintiff to pay two-thirds of the costs of the AFFC, but on a party and party basis only. ORDERS

1. I order that the Australian Film Institute of NSW be deleted as a defendant.

2. I grant leave to the plaintiff to file as an amended Statement of Claim the document presently called "Further Amended Statement of Claim" which I have initialled and dated and placed in the file, but excluding those causes of action therein pleaded against Don Bennetts, which only became complete after 16 December 1993.

(a) by correcting the name of Australian Film Finance Corporation Ltd; (b) by enlarging the description of the film in Annexure "A" to that pleading in order to provide in that description the basis

upon which his claims are based; and (c) by changing the particulars of falsity and of the misleading or deceptive conduct relied on in order to conform to the representation now pleaded.

4. The plaintiff is to supply proper particulars of its allegation in the amended Statement of Claim that Don Bennetts and the Australian Film Finance Corporation Ltd are responsible for the publication by the Australian Broadcasting Corporation of the film "Donald Friend- The Prodigal Australian" upon the occasions identified in that pleading.

5. I order the plaintiff to pay two-thirds of the costs of the Australian Film Finance Corporation Ltd in relation to his application to amend, on a party and party basis only.