33 Mr Sibtain's submission that the contribution claim is not a claim to which s 86(1) Supreme Court Act 1970 applies was based on a number of grounds.
34 Firstly, he contended that upon its proper construction the term "court" where appearing in s 5(2) Law (Miscellaneous Provisions) Act 1946 refers to a judge alone. For support he relies upon the decision of Else Mitchell, J Caledonian Collieries Limited v Fenwick (1959) 76 WN (NSW) 482.
35 In my opinion, with due respect to the learned Judge, the case should not be treated as a binding decision on the point. Analysis of his reasons shows that His Honour's conclusion was arrived at against the background of the procedures then prevailing under the Common Law Procedure Act 1899-1957 and the Jury Act 1912-1957, and after giving much weight to the fact that the jurisdiction conferred on the court was judicial or discretionary in nature, which involved the making of an assessment of a kind which he found was not one which a jury could perform.
36 The legislative context which apparently persuaded the learned Judge to find that the legislature's intention was to exclude the jury no longer exists. Furthermore, the notion that a discretionary assessment to be made on just and equitable grounds is one which cannot be performed by a jury is no longer tenable. The legislature itself has recognised that such an assessment is appropriate for a jury as, for example, s 9 and s 15 Law Reform (Miscellaneous Provisions) Act 1965 as to apportionment of liability in cases of contributory negligence demonstrate.
37 That others may share a similar view to mine may be inferred from the observation of Hunt, J in Blackburn v The State of New South Wales (BC 9102416 at p 17) that in his experience the decision in Caledonian has been universally ignored in jury trials in this Court.
38 In my opinion, upon its proper construction, s 5(2) operates to establish the jurisdiction of the court to determine questions of contribution or exemption. It says nothing about the mode or conduct of the proceedings by which these questions are to be determined. Where proceedings including contribution claims are brought in this Court the procedures are governed by the Supreme Court Act 1970 and the Rules. Of course, there may be statutory exceptions, of which s 7A is an example. Relevantly, Div 2, Pt 6 Supreme Court Act 1970 (which includes s 86) governs the manner of trial of proceedings in this Court.
39 Accordingly I reject the submission that under s 5(2) a claim for contribution must be tried without a jury.
40 Mr Sibtain further submitted that the contribution claim is not a common law claim within the meaning of s 86(1). He put that a statutory claim for contribution is neither a claim for damages nor for other money, and is therefore outside the definition of a common law claim in s 19(1). He also submitted that because a claimant's entitlement to contribution is based on its liability to the Plaintiff a claim for contribution is not a claim to vindicate an existing right and, therefore, is not to be characterised as a common law claim. Finally he argued that the contribution claim did not attract the application of s 86(1) because it was not a claim in respect of defamation.
41 In my opinion these submissions should not be accepted.
42 Section 86(1) applies to common law claims in which there are issues of fact on a claim in respect of defamation. A common law claim is defined to include a claim for damages or other money in proceedings in the Common Law Division. The question whether or not a claim is a common law claim depends upon the meaning of these words, not upon the general law.
43 It may be accepted that the contribution claim is not one for damages (Unsworth v Commissioner for Railways (1958) 101 CLR 73 at pp 90-91). However, in my opinion, there can be no doubt that such a claim is a claim for money within the terms of the definition of common law claim in s 19(1). A claim for the sharing of the financial burden of damages is, plainly enough, a claim for money. Although neither counsel referred me to any authority directly in point I am prepared to make that finding without reference to authority. As Hunt, J pointed out in Burrows v Knightley (1987) 10 NSWLR 651 at p 656:
"Very often there is no authority for an obvious proposition because no-one has previously had the hardihood to dispute it: Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1246; [1971] 2 All ER 1156 at 1163; Kavanagh v Chief Constable of Devon and Cornwall [1974] QB 624 at 634; or because there has been a general consensus of opinion that the contrary proposition is not tenable: Re KL Tractors Ltd (In Liq) (1961) 106 CLR 318 at 338.
44 It was also put that the contribution claim was not a common law claim because it is not one to vindicate an existing right at law. This is said to be so because the right to recover contribution or indemnity is conditional upon the Defendant being found liable to the Plaintiff. Therefore, it is put, such right does not exist until such time as that determination has been made and, thus, the contribution claim is not one within the definition or to which s 86(1) applies.
45 Support for the submission was said to be found in Evans v Lynch (1984) 3 NSWLR 567. The proceedings there under consideration were brought by way of statement of claim in the Supreme Court pursuant to s 247 Customs Act 1901 (Cth) which involved a claim for forfeiture of a ship, the prosecution of certain offences, and a claim for a penalty. Hutley, JA (p 570) held that the order for the payment of money which emerges as the result of a claim for a penalty is not a vindication of an existing right and thus is not a common law claim within the definition. Mahoney, JA (p 570) thought that the claim, as framed, was not a common law claim, and referred, inter alia, to the fact that it involved a claim for forfeiture of a ship.
46 In my opinion the finding that, in the circumstances, the proceedings for a penalty did not fall within the term "common law claim" as defined as not being in vindication of an existing right provides no support for the contention that a contribution claim under s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 should be similarly characterised. The statute establishes the right to make a contribution claim. The existence of this right is not conditional upon the determination of the liability of the claimant for the damage in respect of which the claim for contribution or indemnity is made. It is the entitlement to an order for contribution which is conditional upon the claimant's liability for damage, as distinct from the right to take proceedings for such contribution. By way of comment, the submission appears to be made in ignorance of the general rule that where a defendant seeks contribution or indemnity (whether as a statutory right or pursuant to a contract) such proceedings, brought by way of cross-claim, should in all but exceptional circumstances be heard and determined at the same time as the claim between plaintiff and defendant. Primarily, this is done so that the third party is bound by the result of the trial between the plaintiff and the defendant. (AIS Pty Ltd v Jumbo Scheepvaart (1988) 14 NSWLR 507 at p 521; Blackburn at p 14).
47 Finally it was put, but faintly, that assuming that the contribution claim is a common law claim as defined, it is not one in which there are issues of fact on a claim in respect of defamation, and therefore the requirement for a jury under s 86(1) does not arise.
48 It was put that issues of fact on the contribution claim should be regarded as different in substance from those in respect of the (Plaintiff's) claim for defamation, and therefore outside the section. The submission defies a common sense reading of the cross-claim and of the words of the sub-section. Fairfax claims contribution or indemnity on the basis that it and the State are jointly liable to the Plaintiff for the republication of defamatory matter by Fairfax, and that the damage caused by that publication should be shared. It is plain that the claim is in respect of defamation within the meaning of s 86(1). The submission is without merit, and is rejected.
General conclusion
49 Section 7A(4) of the Act operates to take away from the jury issues of fact relevant to any defence raised by the Defendant, and to the determination of damages to be awarded to the Plaintiff. That is the extent of the change made by the legislature to the procedure by which defamation claims are to be tried under s 86(1) Supreme Court Act 1970. Issues of fact on a cross-claim under s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 by which the Defendant claims contribution from another party or other parties remain to be tried by a jury.
50 Accordingly, in answer to the question for separate decision I hold that the issues of fact on the contribution claim should be tried by a jury pursuant to s 86 Supreme Court Act 1970.
51 I direct that the cross-claim be tried pursuant to s 86 Supreme Court Act 1970.
52 In the circumstances it would be appropriate that Fairfax be ordered to pay the costs of the State of the proceedings in which the question was heard and determined. However, it is appropriate that the parties have the opportunity to address me on the question of costs should they fail to reach agreement on the order to be made.
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