Keramaniakis v Wagstaff

Con Keramaniakis (First Plaintiff) PARTIES: Albert Smagarinsky (Second Plaintiff) Bruce Wagstaff (First Defendant) Regional Publishers Pty Ltd (Second Defendant)

1 These proceedings are brought by the Plaintiffs in respect of a publication in The Daily Liberal, a newspaper circulating in the Dubbo region. The Second Defendant ('Regional') is the publisher of the newspaper, and the First Defendant ('Dr Wagstaff') is a medical practitioner who spoke to a journalist, Ms Kathy Stone (an employee of Regional), in which conversation he made comments about the Plaintiffs which, it is claimed, formed the basis of an article that appeared in the newspaper on 22 March 2001, and which the Plaintiffs, both medical practitioners carrying on practice through a corporate vehicle, allege contains imputations defamatory of them.

2 On 15 December 2003, by consent, a date for hearing of a 's7A Jury Matter' was fixed for 17 May 2004. Section 7A is a reference to s7A of the Defamation Act 1974 (NSW) ('the Act'), which provides: '(1) If proceedings for defamation are tried before a jury, the court and not the jury is to determine whether the matter complained of is reasonably capable of carrying the imputation pleaded by the plaintiff and, if it is, whether the imputation is reasonably capable of bearing a defamatory meaning. (2) If the court determines that: (a) the matter is not reasonably capable of carrying the imputation pleaded by the plaintiff, or (b) the imputation is not reasonably capable of bearing a defamatory meaning, the court is to enter a verdict for the defendant in relation to the imputation pleaded. (3) If the court determines that: (a) the matter is reasonably capable of carrying the imputation pleaded by the plaintiff, and (b) the imputation is reasonably capable of bearing a defamatory meaning, the jury is to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory. (4) If the jury determines that the matter complained of was published by the defendant and carries an imputation that is defamatory of the plaintiff, the court and not the jury is: (a) to determine whether any defence raised by the defendant (including all issues of fact and law relating to that defence) has been established, and (b) to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount. (5) Section 86 of the Supreme Court Act 1970 and section 76B of the District Court Act 1973 apply subject to the provisions of this section'

Section 76B of the District Court Act provides: '(1) Proceedings on a common law claim in which there are issues of fact on a claim in respect of defamation are to be tried with a jury. (2) Despite subsection (1), the Court may order that all or any issue of fact be tried without a jury if: (a) any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury, or (b) all parties consent to the order.'

3 When the matter came on for hearing before Judge Cooper ADCJ on 17 May 2004, there was argument between the parties as to whether the Plaintiffs were entitled to lead evidence of two conversations between Dr Wagstaff and Ms Stone, and a draft article which was delivered to Dr Wagstaff by Ms Stone, pleaded as one publication in para 5 of the Second Further Amended Statement of Claim, which was the pleading upon which the Plaintiffs were proceeding. On both these issues, Judge Cooper held in favour of the Plaintiffs. His reasons were contained in a judgment delivered on 18 May 2004 and found as Annexure 'A', pages 1-10 to Ms Inglis's affidavit of 28 January 2005 in support of the motion. On a third issue, his Honour held, following Cinivest (infra), that identification was a matter for the jury in a s7A hearing in relation to one of the Plaintiffs, and hence that the jury should be asked to answer a question on that issue.

4 Dr Wagstaff, having failed in his argument, then sought a vacation of the s7A trial, which Cooper ADCJ granted. His Honour gave reasons orally, which are found in pages 1-14 of Ms Inglis's affidavit.

5 Cooper ADCJ held that the balance of convenience lay in allowing the appeal to be heard by the Court of Appeal, and he did not proceed to empanel a jury.

6 Following his Honour's rulings, the Plaintiffs, at the s7A hearing, offered to amend their pleadings to plead republication as going only to damages, and hence avoid the need for an interlocutory appeal. Cooper ADCJ, however, nevertheless vacated the 7A trial. He gave reasons for this decision: see pages 15-17 of Ms Inglis's affidavit.

7 On 26 May 2004, the Plaintiffs served on the Defendants a proposed Third Further Amended Statement of Claim.

8 On 9 December 2004, Dr Wagstaff's summons for leave to appeal and the interlocutory appeal came before Justices Beazley, Giles and McColl JA, who were of the view that the application for leave and the appeal should not be argued and determined until the Plaintiffs' application for leave to file a third amended Statement of Claim was dealt with by this Court.

9 On 17 December, when the matter was listed before me for directions, I was informed of the view of the Court of Appeal, and, by consent, orders were made for the filing of evidence in support of the Plaintiffs' motion for leave to file the Third Further Amended Statement of Claim, and for the filing of submissions.

10 The motion is one dated 28 January 2005 and seeks leave to file a Third Further Amended Statement of Claim, the form of which is annexed to the affidavit of Fiona Michelle Inglis of 28 January 2005. I heard argument on 24 March 2005 but the submissions were not completed on that day, and I stood the matter over until 11 May 2005 (a delay brought about largely by circuit commitments). The Plaintiffs rely on an affidavit of Fiona Inglis of 28 January 2005 and Dr Wagstaff relies on an affidavit of Mr Graham Hryce of 17 February 2005.

11 I shall endeavour to summarise the Third Further Amended Statement of Claim, omitting pleading niceties. The Plaintiffs were doctors practising using the business name Dubbo Skin Cancer Centre. Dr Wagstaff was a medical practitioner in Dubbo. Regional was the publisher of the Daily Liberal. It is alleged that Dr Wagstaff, in an interview with Ms Stone, made statements about the Centre which carried imputations defamatory of the Plaintiffs, knowing that Ms Stone was writing an article about the Centre, and asked for a draft of the article, which Ms Stone provided by facsimile and in respect of which Dr Wagstaff requested and obtained amendments. Regional then published the article, as amended. The first conversation with Ms Stone is described as 'the First Stone Conversation' and the second conversation, where Dr Wagstaff allegedly corrected part of the draft, is described as 'the Second Stone Conversation', and I shall use this terminology in these reasons. The Plaintiffs' claim is that the article that was published and the words used by Dr Wagstaff in the First and Second Stone Conversations bear imputations that each of the medical practitioners: (i) was more concerned with making money than with the wellbeing of his patients; (ii) had misled the public; (iii) had charged excessive fees for medical services.

12 The Third Further Amended Statement of Claim gives particulars of the circumstances of publication of the words by Dr Wagstaff, and of the article in the newspaper, and particulars of identification (the Plaintiffs were not mentioned by name in the First and Second Stone Conversations), and pleads damages and aggravated damages. The particulars of aggravated damages are Regional's failure to apologise and its 'application to abort the s7A hearing on 18 May 2004 in the circumstances in which it arose and was pressed'.

13 The Third Further Amended Statement of Claim contains the following paragraph 8: '8 By reason of the matters stated above, the first defendant was liable for the damage caused to the plaintiffs by reason of the repetition of the Wagstaff interview in the Daily Liberal article. Particulars The plaintiffs rely on the repetition of the Wagstaff interview in "The Daily Liberal" newspaper only on the question of the damages arising out of the publication pleaded in para 5 hereof and not as a separate cause of action in republication against the first defendant' (my emphasis).

14 Regional consents to the filing of the Third Further Amended Statement of Claim subject to two matters, viz, that the Plaintiffs pay the costs of Regional thrown away by reason of the amendment, and that the Plaintiffs agree that the matter complained of as pleaded against Regional comprises the entire article published on 22 March 2001. I have been informed that both those matters are agreed, and Regional was excused from further involvement in the motion on that basis.

15 Dr Wagstaff opposes the filing of the Third Further Amended Statement of Claim. The basis of opposition is detailed in lengthy submissions which canvas fundamental issues esoteric to the law of defamation and pleading. The issues which are thrown up by the lengthy submissions are, it is agreed (using largely the terminology of Mr Connell of Counsel who appears for Dr Wagstaff on the motion but using my own short descriptors in bold type), as follows: (1) that the pleading in para 5 of the Third Further Amended Statement of Claim is bad in law because it is contrary to Gordon v Amalgamated Television Service Pty Ltd [1980] 2 NSWLR 410 - the real matter is not pleaded (the 'Contrary to Gordon point'); (2) it is bad in law because the matters in the First Stone Conversation and Second Stone Conversation cannot be pleaded as one matter (the 'Single Publication point'); (3) it is bad in law because, contrary to Grappelli Derek Block (Holdings) Ltd [1981] 1 WLR 822; [1981] 2 All ER 272, the First Stone Conversation is incapable, as particularised, of identifying either Plaintiff (the ' Grappelli v Block point'); (4) it is bad in law because not authorised by Baltinos v Foreign Language Publications Pty Ltd [1986] 6 NSWLR 85 or Hayward v Thompson [1982] QB 47; [1981] 3 All ER 450 (the ' Baltinos point'); (5) The pleading is defective because of the way it deals with the Stone Question (the 'Stone Question point'); (6) the particular regarding the draft article is improper because it is not part of the matter complained of (the 'Draft Article point'); (7) the purpose of pleading in para 5 is to gloss over the fatal problems in the identification case (the 'First Purpose point'); (8) as to para 7, the pleading does not assert a cause of action based on republication ('cause of action republication') and is bad in law because a claim for republication going to damages only ('damages republication') is bad in law, and contrary to s9 of the Act, and contrary to Grey v David Syme (1992) 106 FLR 103 (the 'Damages Republication point'); (9) pleading on damages should not be allowed as a matter of practice for reasons set out in Blackburn v The State of New South Wales (NSW Supreme Court, Hunt J, 31 January 1991) and Toomey v Mirror Newspapers (1985) 1 NSWLR 173; (10) The purpose of the pleading as a damages republication point is to avoid a jury deciding the issue - an attempt which is futile because of s7A, s76B and s9 of the Act - using the word 'repetition' does not change a republication plea into something else, and there is no purpose in the amendment - it does not raise any new claim (the 'Second Purpose point'); (11) particular (viii) of the particulars of identification in the draft Third Further Amended Statement of Claim is an abuse (the 'Particular (viii) point') (12) in the exercise of its discretion the Court should refuse leave because of: (a) the history of previous amendments; (b) the imposition on Dr Wagstaff (see reference to Exhibit M paras 29-31); (c) delay; and (d) the risk of concurrent findings by judge and jury (see para 20 of submissions of 11 May 2005), (the 'Discretion' point).

16 The Plaintiffs dispute each of the points but raise as a further issue the question of whether Dr Wagstaff should be permitted to reargue matters (2), (3), (4), (6), (8) and (9), because they have already been determined by ADCJ Cooper in this case and should not now be reopened.

17 Dr Wagstaff has sought leave to appeal from the decisions of Cooper ADCJ and the matter came before the Court of Appeal. As I have mentioned, the Court of Appeal (Giles JA, Beazley and McColl JJA) were of the view that the question of the amendment should be heard by this Court before the Court of Appeal embarks upon consideration of the leave application in respect of Cooper ADCJ's judgments. The transcript of the hearing in the Court of Appeal was made available to me on 5 April 2005.

18 The Plaintiffs did not actually seek to amend their pleadings before Cooper ADCJ, and hence his Honour did not need to consider whether the amendment should be allowed. If the amendment is allowed, the Plaintiffs will no longer be proceeding on the Statement of Claim that was before Cooper ADCJ and in respect of which the jury was assembled, but not empanelled, and which is now the subject of the appeal to the Court of Appeal. It may be that the appeal will be otiose in those circumstances, but from what has been said by Mr Connell as to what is understood will occur once the amendment issue is determined by me, that does not sound likely.

19 The principles relevant to whether an amendment should be allowed were considered in State of Queensland v J L Holdings Pty Ltd (1996) 189 CLR 146. That case involved amendment of a defence but the principles are equally applicable to a statement of claim. At p154, Dawson, Gaudron and McHugh JJ confirmed that the approach taken by Clough & Rogers v Frog (1974) 4 ALR 615; (1974) 48 ALJR 481, namely that an amendment should be allowed unless it appeared that injustice would thereby be occasioned to the other party (there being no suggestion of fraud or improper concealment), is the appropriate one. Delay and irregularity were not of themselves sufficient to amount to injustice to the other party: see p153 of J L Holdings. Their Honours said (at p154) that the principles of case management could not, except perhaps in extreme circumstances, shut a party out from litigating an issue 'which is fairly arguable', and 'if it is arguable, the applicants should be permitted to argue it, provided that any prejudice to [the Respondent Plaintiff] might be compensated by costs' (p155), and 'justice is the paramount consideration' in determining an application such as the one in question: p155. The Court obviously thought (at p155.2) that personal strain on a litigant was a matter in considering whether costs would be an adequate remedy for prejudice caused by the amendment.

20 The reference to 'fairly arguable' is an important one. Much of the argument before me centred on the correctness of two decisions of Levine J (to which I shall refer below) on the question of what should be part of a s7A jury trial and what should not, and the correctness of earlier decisions as to whether a plaintiff has the right to elect between remedies in relation to republication. I accept that a Plaintiff should not be given leave to amend where the amendment is futile or untenable or where the pleading is unintelligible or confusing (in such a case leave may be given to replead) and I accept in accordance with the approach in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 that the Court may need to consider complex issues of law to form a view on whether a claim is really maintainable, but I do not accept that it is appropriate to resolve a question of law adversely to a party seeking to amend (a claim or defence) where there is no binding authority that establishes that the claim is untenable or futile. The power to dismiss an action is to be exercised sparingly and only where the untenability or futility is clear: see for example Australian Building Industries Pty Ltd v Stramit BC9706333 (Federal Court of Australia, Northrop, Lindgren and Lehane JJ, 1 December 1997).

21 In J L Holdings, Kirby J gave a separate judgment and concurred in the result of the other members of the Court. At pp169-170, he set out the considerations which may tend to favour the extension of an indulgence to a party applying for it, and those which tend to argue against the indulgence. Mr Henskens, who appears for the Plaintiffs, submitted that the approach of the majority was not consistent with the need to consider such matters. I do not think the majority was endeavouring to exhaustively deal with what will be relevant to the exercise of discretion - indeed, provided the considerations relate to the attainment of justice, these would appear to form part of the approach of the majority, in any event. I have had regard to the enumeration of matters by Kirby J. The only matters put forward by Dr Wagstaff on the discretionary aspects are prejudice because of loss of the jury on the question of republication (if the decision on what is to go to the jury is allowed to stand), the history of previous amendments, and the imposition on Dr Wagstaff and delay. I will deal with these matters below under the heading of 'Discretionary Factors'.

22 In Gordon, the plaintiff sought to rely on parts of what had been said in a television program as the matter complained of but not other parts. The other parts contained denials by him of what had been said by others earlier. There was no dispute as to what had been said in the parts which the defendant wanted the plaintiff to be forced to plead. Hunt J drew a distinction between defamation in written form where the plaintiff is obliged to include within his pleading every passage which materially alters or qualifies the complexion of the imputation complained of, because the effect of the matter complained of must be taken from the whole of what has been published. That principle, he held, is qualified in the case of an oral defamation but only to the extent that there needs to be agreement as to what else was said.

23 I accept that the principle applies to oral defamation. Mr Henskens did not assert otherwise but argued that it would not be appropriate for the Court to order 'strike-in', as it is called, where there was no agreement as to the other words which the Defendant says should be pleaded. The Plaintiffs would, he said, be willing to consider inclusion of the words used by Dr Wagstaff as described by Regional in its answer to interrogatories. Dr Wagstaff, however, not only does not accept that version as correct but he foreshadowed making an application to amend his answer to interrogatories which is Annexure "D" to Ms Inglis's affidavit and which answers accept most of what Ms Stone attributed to him. I indicated that I did not think it was appropriate for me to deal with any such application on the Plaintiffs' motion for leave to amend and that was not taken further. Given the absence of agreement as to what was said beyond the matter pleaded, I do not think the Plaintiffs should be required to plead matters beyond that which they have pleaded.

24 The Plaintiffs rely on Burrows v Knightley and Nationwide News Pty Ltd (1987) 10 NSWLR 651 and Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107, for the proposition that where several communications are interlinked in the way alleged in the particulars to para 5 of the proposed pleading, they may be pleaded as a single publication.

25 In Burrows, Hunt J noted several principles relevant to pleading in defamation law, which I shall summarise: (1) Where a plaintiff relies upon facts or circumstances not stated in the published matter in order to give that matter a secondary or extended meaning, he must establish that a reader to whom it was published was aware of such extrinsic facts or circumstances at the time when the publication took place to him and not later - Grappelli v Derek Block is cited. (2) A plaintiff can rely on certain subsequent publications in order to establish that he was identified in the matter complained of. (3) There is a distinction between subsequent material used to support identification and material used to add to or vary the meaning of the matter, although Hunt J thought that the justification for the distinction is not made clear by the Court of Appeal in Hayward . (4) Where the matter complained of refers to other material in the same newspaper, the plaintiff may be required to tender that other material in his case, if it is capable of affecting the sense of the matter complained of. (5) Where there are two separate publications by the defendant, the plaintiff is entitled to (or may be obliged to) have them considered together in order to determine the sense in which either was understood, provided that they are sufficiently connected and identified with each other. (6) 'Where the matter of which a plaintiff complains consists of related material published by the defendant on different occasions, and where there is apparent, on the face of the matter complained of itself, either an intention on the part of the defendant that it be read together or direct references internally one to the other so that the reader may reasonably be expected to read it together, it is acceptable practice to plead all of the material in the one paragraph of the Statement of Claim and to identify the imputations said to have been conveyed by the material as a whole. It is not necessary to plead each part separately and to add "true" innuendoes where material published on one occasion is relied upon to give a statement published on another occasion a meaning beyond that which it conveys when considered in isolation': from Abbott v TCN Channel Nine (NSW Supreme Court, Hunt J, 6 October 1987).

26 In Beran v John Fairfax, the Court of Appeal approved of the approach in Burroughs and Gordon, and agreed with the trial judge that the plaintiff was not entitled to have the two matters relied on as separate publications.

27 His Honour Judge Cooper concluded that the Plaintiffs had pleaded the matter as one publication and did not have to plead the two interviews as separate acts of publication.

28 I do not think it is appropriate to reconsider the matter, but in any event, like his Honour, I am of the view that the First Stone Conversation and Second Stone Conversation are sufficiently linked by what was said in each, and that the Plaintiffs should be permitted to rely on the two interviews as one publication.

29 It was held in Grappelli v Block (Holdings) Ltd [1981] 1 WLR 822, 825, 831; [1981] All ER 272, 274, 279, that a subsequent publication cannot be used as an extrinsic fact (or as the means by which the reader's knowledge of an extrinsic fact is obtained) in order to cause an otherwise innocent publication to be understood in a defamatory sense: see also Baltinos at p 88. The Plaintiffs concede that the Plaintiffs were not identified by name in the First Stone Conversation, and that they were not known by name to Ms Stone, until she had contacted the Second Plaintiff before preparing her draft report, which she forwarded to Dr Wagstaff as he had requested. If the Second Stone Conversation is part of the one publication then by that time the Plaintiffs, or at least one of them, was known to Ms Stone and hence the requirement that the identity of the person defamed be known to the person to whom the utterance was made at the time it was made is satisfied. It is also a matter already determined by Cooper ADCJ and should be rejected for that reason as well.

30 The general principle set out in paragraph 29 is subject to a qualification that if the first publication invites the reader to ascertain the identity of the person unnamed in the first publication by reference to a second publication in which the Plaintiff is named that will be sufficient: see Baltinos (supra). Dr Wagstaff submits that the Baltinos exception is not enlivened here, which was conceded by Mr Henskens. If the view I have taken in relation to the Grappelli v Derek Block point is correct (on either basis) it does not matter that the conditions relevant to the Baltinos exception have not been met.

31 Mr Cornell conceded that this was a small point. The pleading in paragraph 5 asserts that Dr Wagstaff said words, but it also contains questions from Ms Stone. Mr Henskens agreed to make amendments in the form of Exhibit A and Mr Connell agreed to take no objection to the amended pleading in that respect.

32 Dr Wagstaff objects to the reference to the draft article in the particulars because it is not part of the matter complained of. I see no problem with this - the provision of the draft is a relevant matter as a circumstance of the publication - the draft was referred to in both the First Stone Conversation and the Second Stone Conversation and the pleadings make quite clear that the request by Dr Wagstaff for the draft, the provision of it to him, and his further conversation in respect of it, are relied on as the circumstances of Dr Wagstaff uttering the words that it is alleged he did utter. This was also a matter effectively decided by Cooper ADCJ and ought not to have been revisited.

33 It does appear that those advising the Plaintiff recognise that if they were forced to plead the First Stone Conversation separately that claim would fail because Ms Stone at that point did not know who owned the Dubbo Skin Clinic. If the Plaintiffs are permitted to plead a matter in a particular way and thus avoid a difficulty, it is in my view irrelevant that the purpose of pleading it in that way is to avoid some forensic difficulty. If a claim is in contract against a solicitor for breach of retainer but the contract claim is statute-barred, amendment to add a claim in tort which is not statute-barred could not be opposed on the basis that the purpose of the amendment was to avoid the limitations defence.

34 In Gatley on Libel and Slander 9th edn, there appears the following passage at para 6.30: 'Where a defendant's defamatory statement is voluntarily republished by the person to whom he published it or by some other person, the question arises whether the defendant is liable for the damage caused by that further publication. In such a case the plaintiff may have a choice: (a) he may sue the defendant both for the original publication and for the separate republication as two causes of action, or (b) sue the defendant in respect of the original publication only, but seek to recover as a consequence of that original publication.'

The authorities cited in support for that are Toomey v Mirror Newspapers (1985) 1 NSWLR 173, 182-183; Sims v Wran [1984] 1 NSWLR 317. That the plaintiff has that choice was confirmed by the Court of Appeal in Harris v 718932 Pty Ltd [2003] 56 NSWLR 276, 281; Ainsworth v Burden (2003) 56 NSWLR 620, 622 [5]; State Bank of New South Wales Ltd v Currabubula Holdings Pty Limited [2001] NSWCA 47 at 106 per Giles JA, and see Gillooley, The Law of Defamation in Australia and New Zealand (Federation Press 1998) p 80 and p88, and see also Timms v Clift [1998] 2 Qd R 100; BC9701026, in which the Queensland Court of Appeal seems to accept that republication can be limited to damages at p106, on the basis of Cutler v McPhail.

35 Mr Connell points to Toomey (supra) and Blackburn for the proposition that a damages republication pleading should not be allowed. Toomey is one of the cases cited in support of the proposition that the Plaintiff has a choice, and that the case is authority for that proposition is supported by passages on page 181G-182D, 183A-G, 184G and 186D of the report. However, at 186F-187A Hunt J describes the course proposed by the Plaintiff as 'likely to lead to mischief' and said it would 'be better if that course were not followed in the future'. I was inclined to view this as a reference to the need for clarity in the pleadings as to which course the Plaintiff wished to take (see p176), particularly given his Honour's approach in Sims v Wran (which is a republication case), in which he said, 'a plaintiff is entitled if he wishes to complain only of the original publication, but to seek to recover as a consequence of that original publication the damage which he 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. But, if the plaintiff intends to do so, he is obliged to make his intention clear in his statement of claim: Pt 15, r 13(1)' (my emphasis).

36 In the subsequent unreported decision in Blackburn (supra), his Honour, having set out the two alternatives on pp 5-6, described the second alternative as 'certain to be productive of error', and taking the two decisions together there is force in Mr Connell's submission that his Honour expresses a view which is negative to the pleading of republication damages, and the headnote to Toomey also supports the submission. I find that surprising given that his Honour started his analysis in Toomey by accepting at 181G that where the case involves republication by others (Toomey concerned publication of one newspaper in different states) there is a choice available and concluded that logically there should be no distinction drawn between damages where the defendant makes a multiple publication himself and those for which he is liable where someone else republishes what he himself has published (p183G) and because of the clear view expressed by him in Sims v Wran to which I have referred. It does not appear that the learned editors of Australian Defamation Law and Practice or Gatley on Libel and Slander 9th edn see 6.1, 6.30, 32.05, have had regard to the second half of p186 of Toomey, and see also Gummow J's analysis and rejection of the reasoning in Toomey in Grey (infra) pp325-327, and see the written submissions on behalf of Dr Wagstaff in the Court of Appeal paras 10-19 Annexure 'L' to Mr Hryce's affidavit. Gillooly does, however, at p86, make reference to this point and offers the view that Hunt J's critical comments relate only to multiple publications (not republications). This is an attractive view but which can be met by the point that Blackburn is a case of republication, and his Honour seems to make no distinction in his comment at the bottom of page 6 to the distinction.

37 Whether or not Hunt J was warning against use of the second option in republication cases, the Court of Appeal has on four occasions approved of the existence of choice and said nothing against the exercise of that option by a defendant. I am inclined to agree with Mr Connell that the expression of support is obiter.

38 Mr Connell then points to a judgment of Gummow J, then sitting as a member of the Full Federal Court, in David Syme & Co Ltd v Grey (1992) 38 FCR 303. In that case, his Honour said: 'In any event, in my view, to rely upon publication in each of the States and Northern Territory as "going only to damages and not as separate causes of action" is to assert what in law is impossible' (p323).

That view appears to be obiter, but in any event it was not a view expressed by Neaves J (the other member of the majority): for his view see p309. Further, Grey is a multiple publication case and not a republication case. Gillooly at p86 agreed with Gummow J's views and with Hunt J's view as understood by the author as going to multiple publications.

39 I should add that it was argued that the use of the word 'repetition' rather than 'republication' was an attempt to dress up republication, to avoid the consequences. 'Repetition' and 'republication' seem to be used interchangeably in the cases and texts and I agree that calling the claim repetition makes no material difference - if damages republication is not permissible, then calling it will not assist the Plaintiff.

40 I should note that it was argued by Mr Connell that defences to republication are available according to the lex loci delicti and that pleading damages republication could not preclude such defence. That was dealt with in Toomey - Hunt J accepting that this was so: see 186C. I do not think that the High Court in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at para 81 (Grey was there cited in connection with the proposition that the tort of libel may be committed in many States when a national publication publishes an article that defames a person) or in Dow Jones & Co v Gutnick (2002) 210 CLR 575 at para 27 is to be taken as expressing views relevant to the present issue.

41 In Collins Stewart Ltd & Anor v The Financial Times [2005] EWHC 262 (QB) (25 Feb 2005) Gray LJ struck out a paragraph of a Statement of Claim on the basis that a claimant should not be able to seek to recover increased damages by reason of a publication that is not itself the subject of complaint.

42 Collins Stewart was a case concerned with further publications by the same publisher and is potentially distinguishable, but the view of Gummow J and of Gray LJ, even if strictly dealing with multiple publications, and the difficulty of Toomey and Blackburn cast doubt on whether damages republication can or ought be pleaded, and there may well be room for argument as to what it is precisely that Cutler v McPhail did decide, but Sims, Harris and Ainsworth, and Currabubula, and even Toomey itself point in the opposite direction and none of those New South Wales cases have suggested that s9 of the Act (set out infra) precludes a claim for republication damages. For the purposes of the amendment application, such authority demonstrates that the claim for damages based on republication is at the very least arguable (leaving aside any question of whether the Court of Appeal decisions constitute a binding authority as the Plaintiffs contend), and in my view it is not appropriate to shut the Plaintiffs out from arguing their case on this basis.

43 I have already dealt with the 'purpose' argument in relation to the first purpose point. The jury, in determining whether the matter complained of as against Dr Wagstaff must determine whether what was said in its context bore the imputations complained of. The article published in the newspaper, since it is not pleaded as against Dr Wagstaff as founding a cause of action, is not relevant to that aspect. It will of course have to be determined as against Regional, and the conclusion on that point will be relevant to the damages issue.

44 Mr Connell submits that the amendment should not be allowed because it deprives them of a jury trial. I find this a somewhat surprising submission in the light of the fact that this Court has already decided that cause of action republication (as the pleadings were then cast) was not a jury matter - that decision is on appeal.

45 It is only if the Court of Appeal finds that damages republication is not a jury matter but cause of action republication is a jury matter that the present amendment will result in loss of the right to a jury on the issue of republication (and even that is subject to an important matter to which I refer below). The Plaintiffs should not, in any event, be precluded from making an election because it would have that effect. It was always open to them to commence their claim that way. There is a further matter, which is this is not a case in which a jury will not be required to determine whether what was published in The Daily Liberal was published of and concerning the Plaintiffs and whether or not the imputations were conveyed and were or were not defamatory - because these issues will be before the jury on the issue of publication by Regional.

46 In my view, the question of what is to go to the jury on a s7A trial is not a matter relevant to whether the amendment should be allowed. Strictly, then, I do not need to consider: (1) whether Griffiths , as a matter of precedent (in the strict sense), is binding on me; (2) whether, if it is, it is distinguishable; (3) whether, even if Griffiths is not binding, it is a judgment as a matter of comity that I should decline to follow only if I am of the view that it is clearly wrong; (4) whether, even if Griffiths is not binding in a strict sense or as a matter of comity, I should follow and apply its logic to the question of whether damages republication is a matter that should go to a jury under s7A; (5) whether Griffiths is inconsistent with Cinivest , a decision of the Court of Appeal, which is binding on me.

47 Because of the nature of the submissions and the fact that so much effort was put into them (and because of the considerable importance of the first matter), I shall, however, say something about each of these matters.

48 The issue of whether a District Court judge is bound to follow a judgment of a single judge of the NSW Supreme Court as a matter of precedent in its strict sense (ie obliged to follow, whatever the Court's own inclinations may be: see Sir Anthony Mason 'The Use and Abuse of Precedent' ((1998) 4 Aust Bar Rev 93, 96-97) is one which has not been expressly dealt with in any decision which counsel or my Associate by their researches have been able to locate. I note that Acting Judge Cooper held that he was so bound, saying that it 'is well accepted law and principle that the decision of a justice of the Supreme Court is binding upon a judge of an inferior Court in the same jurisdiction unless that decision is distinguishable or merely obiter dicta or contrary to a decision of a superior court'. No authority was cited or discussed by his Honour because of the urgency of the matter and because his Honour understood there to be no doubt about the statement of principle. Mr Henskens submits that Cooper ADCJ was very likely correct to regard himself as so bound, and that I should do the same.

49 It was not disputed by Mr Connell that I should, as a matter of judicial comity, follow Griffiths unless I was convinced that Levine J's judgment was wrong: see Valentine v Eid (1992) 27 NSWLR 615 at 620, a decision of Grove J in which he concluded that a magistrate was not bound as a matter of precedent by a decision of the District Court but that judicial comity applied. One of the matters which Grove J regarded as important in coming to that decision is that the District Court is not a superior court of record.

50 There can be no doubt that a judge of the Supreme Court sitting alone is bound to follow a decision of the Court of Appeal where the facts of the case are relevantly indistinguishable from the facts in the case before the Court of Appeal: see Proctor v Jetway Aviation [1984] 1 NSWLR 166, and a fortiori this applies to judges of the District Court. In each case, the judgment is one which can be taken on appeal to the Court of Appeal.

51 The Plaintiffs assert that part of the ratio decidendi of Valentine v Eid is that an inferior court is bound by the decision of any superior court, whether or not an appeal lies from the inferior court to that level of the superior court.

52 In Proctor, the Court of Appeal was dealing with a decision of single judges of the Supreme Court in which an earlier decision of the Court of Appeal (McGee v Yeomans [1977] 1 NSWLR 273) was not followed. Mofitt P at 171D said: 'The decision of McGee so defined was and is binding on every other New South Wales court lower in the hierarchy of precedent and hence all New South Wales courts including, of course, single judges of the Supreme Court. It is binding on these courts unless and until it is overruled by the High Court or Privy Council or departed from by this Court itself for one of the well recognized, but entirely exceptional, reasons for so doing. Further reference to this matter will later be made. In the meantime, it is sufficient to say that Hunt J and Cross J each fell into error in not following and applying McGee ' (my emphasis).

53 Subsequently, the learned President said (at 177A): 'The obligation of every court loyally to follow decisions of any court superior to it has been often stated. At times it may appear to a judge or to an appeal court that the reasoning or absence of it in a binding decision renders that decision unsatisfactory. However, the law concerning precedent, based as it is on the need for certainty in the law, absolutely binds him to follow the precedent. He is as much bound by the law of precedent and the law so pronounced as he is by any other law.'

54 Priestley JA said at 185: 'That proposition [enunciated in McGee ] therefore become part of the Court of Appeal's decision and by reason of the system of precedent operative in this State it was a proposition which Cross J was bound to regard as the law. The system of precedent requires that judges apply the law as laid down by courts to which appeals lie from them, mediately or immediately, and whether or not they agree with that law' (my emphasis).

55 Glass JA agreed with both Moffitt P and Priestley JA, and I think when one reads the President's initial remarks, using the phrase 'in the hierarchy of precedent', there is nothing inconsistent between Priestley JA's approach and the President's (further demonstrated by Glass JA's express agreement with both of them, see p181A). I do not accept Mr Henskens' argument that Proctor should be treated as authority that supports his contention that all decisions of a superior court of record are binding on a statutory court such as the District Court, irrespective of whether an appeal lies from one to the other.

56 That the hierarchy of precedent has within it the indispensable requirement of appeal (mediately or immediately) is echoed in Viro v The Queen (1976-1978) 141 CLR 80 in the judgment of Barwick CJ: 'The essential basis for the observance of a decision of a tribunal by way of binding precedent is that the tribunal can correct the decisions of the court which is said to be bound' (at p83),

and in the judgment of Stephen J: 'The first duty of a court is to administer justice according to law. However, in the case of an inferior court operating within a system where the doctrine of precedent applies, the existence of authority binding upon it determines for it what it must understand to be the law. It must accept the law to be as that precedent authority has declared it to be, whatever may be its own inclinations in the matter. The sanction implicit in the doctrine of precedent is simple and effective: if an inferior court fails to observe the doctrine the superior court will correct its decision on appeal. Thus the existence of an appeal is inherent in and essential to the doctrine' (at p129),

and in the words of Brennan J in Trident General Insurance Co Limited v McNiece Brothers Pty Limited (1988) 165 CLR 107 at 129-130: 'Courts are bound to apply the principles laid down by court higher in the appellate hierarchy and observance of the rule avoids the futility of delivering judgments which will be reversed on appeal.'

57 Grove J in Valentine v Eid cites Rupert Cross, Precedent in English Law (4th edn, Clarendon Press 1991) and DJ and KH Gifford's text, Our Legal System (Law Book Co 1981), on the topic. To these texts can be added Salmond on Jurisprudence (12th edn) 163n, a note referred to by Cross at page 123 of his text, and Sir Anthony Mason's article, 'The Use and Abuse of Precedent' ((1998) 4 Aust Bar Rev 93, 96-97, McAdam and Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (Butterworths 1998) paras 5.1-5.17 (which contains a detailed discussion of the area but does not refer to Viro in this context and which suggests that the essential premise in Valentine v Eid is undermined if doubts expressed by Sir Anthony Mason extra-curially are correct: see para 5.17), and the following statement by Professor W L Morrison in The System of Law and Courts Governing New South Wales (Butterworths) para 12.26: 'Decisions below the level of the Court of Appeal, for example, decisions of single judges of the Supreme Court or decisions of the District Court judges, are not binding as a matter of precedent on other judges. Since the decisions of the District Court judges and single judges of the Supreme Court are generally subject to appeal immediately to the New South Wales Court of Appeal, that Court, is as it were, the lowest 'correcting' court in the hierarchy.'

58 Interesting questions arise as to the status of judgments of this Court (see Binskin v Kangaroo Transport (1990) BC90022993 in which Maxwell J had taken a different view to Grove J), the extent to which the views expressed by Grove J in reaching the conclusion that a judgment of a District Court judge is not binding on the Local Court are to be seen as relevant to the present issue (which I doubt), and as to whether the approach of the NSW Court of Appeal in Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651, and of Gummow J, then a judge of the Federal Court, in Business World Computers Pty Limited v Australian Telecommunications Commission (1998) 82 ALR 499 in refusing to regard themselves as bound by decisions of a single judge of the High Court, provide further support for the necessary link between appeals and the hierarchy of precedent (as I am inclined to think they do), but in my view, and with all due respect to Acting Judge Cooper (and Grove J if indeed he was implicitly expressing a contrary view on this topic), the statements of principle in Proctor and the judgments of Barwick CJ and Stephen J in Viro and Brennan J (as he then was) in Trident v McNiece provide sufficient authority for the view that a judge of this Court is not bound by a decision of a single judge of the Supreme Court, because even though the District Court is not a court of record and is an inferior court in the curial hierarchy to the Supreme Court, there is no appeal from a decision of this Court to a single judge of the Supreme Court. I accept, of course, that any decision of a single judge of the Supreme Court is entitled to considerable respect and ought be followed unless after due consideration of it, this Court is convinced that it is wrong, for example because some relevant matter or case was not brought to the Supreme Court judge's attention. I would regard that principle, which might be described as a broad principle of comity, as extending to judgments of all Australian Superior Courts.

59 Accordingly, I do not regard myself as bound as a matter of precedent to follow Levine J's judgment in Griffith.

60 In Cinivest Ltd v Yirandi Productions Ltd [1999] NSWSC 1089, the question of whether or not the Plaintiffs were identified in the letter that was the subject of the proceedings was left by the trial judge to the jury. The jury found that one of the Plaintiffs was not identified in the letter. The unsuccessful plaintiff challenged the approach of the trial judge (the successful plaintiff, who was found to be identified, challenged the jury's conclusion on one of the imputations pleaded). Spigelman CJ (with whom Handley JA and Meagher JA agreed) held that the trial judge had correctly left the question of identification to the jury. The Chief Justice noted that although s7A(3) did not refer to publication or identification, s7A(4) was framed in terms that assumed the jury would have decided those matters. The Chief Justice then proceeded to explain that s7A(3) should be read as if the words 'pleaded by the plaintiff' and 'of the plaintiff' were added so that it would read: '"The jury is to determine whether the matter complained of carries the imputation pleaded by the plaintiff and if it does, whether the imputation is defamatory of the plaintiff "': [21].

61 There was no issue of publication in that case and so his Honour did not expressly make further reference to the incorporation of words relating to publication, but I accept Dr Wagstaff's submission that the Chief Justice was indicating an approach that would require both publication and identification to be determined by the jury. I therefore proceed on the basis that the concluding part of s7A(3) should be read as follows: 'the jury is to determine whether the matter complained of was published by the Defendant and if so whether the matter complained of carries the imputation pleaded by the Plaintiff, and if it does, whether the imputation is defamatory of the Plaintiff'.

62 The matter complained of is the matter published by the Defendant. Matter is the report article letter picture oral utterance or thing. Section 9 of the Act provides: (1) Where a person publishes any report, article, letter, note, picture, oral utterance or other thing, by means of which or by means of any part of which, and its publication, the publisher makes an imputation defamatory of another person, whether by innuendo or otherwise, then for the purposes of this section: (a) that report, article, letter, note, picture, oral utterance or thing is a matter , and (b) the imputation is made by means of the publication of that matter.'

63 It follows then that the following questions must be addressed by the jury and not the Court: (a) was the matter complained of published by the Defendant; (b) if the answer to (a) is yes, does the matter complained of carry the imputations pleaded by the plaintiff (or any of them), (c) if the answer to (b) is yes in respect of each imputation so found to be carried, is that imputation defamatory.

64 If the Plaintiffs limit themselves to a cause of action based on what Dr Wagstaff said in the First and Second Stone Conversations, that is the matter upon which the jury are required to adjudicate in relation to the claim against Dr Wagstaff - it is the matter complained of - and the cause of action is for the publication of the defamatory imputations contained in that matter.

65 When republication is pleaded as a separate cause of action, the questions which arise are: (1) did the original publisher authorise or intend the republication; (2) was the republication the natural and probable consequence of the original publication; (3) was the republisher under a moral or legal duty to repeat it to the republishee:

see Gatley, supra, para 6.30, Gillooley page 79, deriving these categories from Speight v Gosnay (1891) 60 QBD NJ 231, 232, discussed in Williams v John Fairfax Group (1991) A Def R 42,087 and Dempster v Coates NSWCA, 11 April 1990.

66 There would also arise implicitly the following questions: (1) did the republisher republish the matter; (5) if the republisher did republish the matter, was it republished in whole or in part; (6) if in part, did the part republished carry the imputations claimed by the plaintiff to arise; (7) if it did, were those imputations defamatory of the plaintiff.

67 In Griffiths v Australian Broadcasting Corporation [2003] NSWSC 298; BC200301678; a case in which the educational institutions who republished were not defendants, Levine J considered the issue of whether republication was a matter that s7A required must be left to the jury. He examined the legislation and the comments of the NSWLRC Discussion Paper 32 August 1993. He concluded that the description ''publisher' is not appropriate to be attached to the sued defendant in relation to the third party's publication, or, to put it shortly, the sued defendant is not a publisher of that which the third party republished. All that happens if the intermediate steps, if I may so describe them, are established is that liability is fixed on the sued defendant for that which the third party published. If those intermediate steps are established, that which the third party published is, because of those steps, called a republication. But it is not a publication by the sued defendant' (my emphasis.).

68 In Doan v Advanced Microdevised Inc [2004] NSWSC 216, Levine J reiterated his views in Griffiths.

69 Having considered Griffith: (1) With respect, I think it was correctly decided, for the reasons given by Levine J. (2) Even if I had some doubt as to its correctness, I would regard it as a decision which I ought follow not only because it is a judgment of a judge of a superior court which is not obviously erroneous, as a matter of general comity, but further, recognising that although ex tempore and a case where there was in a sense no contradictor, it was given by a judge with extensive experience sitting in a specialist jurisdiction. (3) It is not inconsistent with Cinivest and was not implicitly overruled by Cinivest .

70 Although Mr Connell argued that republication is a 'publication' and hence republication is as much a matter for the jury as publication, I think this ignores the fact that the republication was not a republication by the original publisher - so the words 'published by the defendant' in s7A(4) and on the authority of Cinivest to be read into s7A(3) do not seem to fit. Cinivest is not concerned with the issue of republication. If the republisher is a defendant as well as the original publisher, the question of whether what was published was published by the other defendant, whether it was of the Plaintiff, whether it carried the imputations, and whether the imputations were defamatory of the plaintiff, would all need to be determined, in any event.

71 I think it follows as a matter of logic that if cause of action republication is not a jury matter under s 7A, then damages republication is not either (this was conceded by Mr Connell), but in relation to damages republication, there is one further matter which does not depend on the outcome of whether cause of action republication is a jury matter or not, namely, the legislation specifically provides that the Court and not the jury is to determine the amount of damages. If republication can go to damages, then that is a matter that must be determined by the judge and not the jury.

72 If the jury has determined publication and all other issues adversely to a publisher, and the issue of republication is determined adversely as against the republisher, the judge in dealing with damages questions as against the publisher may have to deal with issues of what further evidence can be received in respect of the republication solely on the question of damages.

73 I am not convinced that there are likely to be insurmountable difficulties - the law and procedure relating to damages in defamation will be applied. I do not think that the fact that there may be further issues about republication on the question of damages is a reason to read the legislation as excluding from the 'damages' questions expressly left to the judge, republication when it is pleaded in that way, ie as going only to damages, nor do I think it points to Levine J's decision on cause of action republication as being incorrect.

74 Dr Wagstaff asserts that particular (viii) as a particular of identification in the Third Further Amended Statement of Claim should not be allowed, because it is not a particular of identification but is evidence going to truth or falsity of the matter published. In the pleading it is put as something that Ms Stone knew (and which the Plaintiffs will have to establish) relevant to identification, and the fact that it may have some other effect as well does not in my view prevent it being relied upon.

75 The 'imposition' referred to as a discretionary matter seems to be linked to the claim of delay and hardship on Dr Wagstaff. Although reference is made to paras 29-31 of Exhibit M to Mr Hryce's affidavit, they do not point to any particular hardship on Dr Wagstaff, nor is there any evidence of such. Kirby J in JL Holdings did point to the need to consider the position of the party against whom the amendment is sought and the need particularly to consider the strain of litigation - the majority judgment also makes reference to this. I accept that it is undesirable for cases to drag on. The fact that the proposed amendment is the fifth formal amendment (Third Further Amended Statement of Claim) is also relevant to whether amendment should be allowed. There have clearly been problems in the Plaintiffs' camp, and late joinder of Regional, and I note that the Plaintiffs were ordered to pay costs by Judge Ainslie-Wallace and to do so before conclusion of the proceedings.

76 Against those matters, however, are these - the delay since September 2004 has arisen because the Defendants sought to abort the jury trial and succeeded - and the matter has gone to the Court of Appeal. That is Dr Wagstaff's right, but he cannot lay delay consequent upon that at the foot of the Plaintiffs. The amendments are made at a time when no further hearing date for the Part 7A has been fixed, and they involve no significant recasting of the claim. The Plaintiffs seek to take advantage of their right (on the basis of an approach approved in Sims and arguably in Toomey and in a number of cases in the Court of Appeal such as Harris and Ainsworth) to elect to put the republication on the basis of damages only. If, contrary to the contentions of Dr Wagstaff, they have that right, they should be allowed to exercise it, in the interests of justice. None of the other amendments are substantial but they do seek to take into account the Answers to Interrogatories given by Regional (Annexure 'C' to Mrs Inglis's affidavit), which is not surprising or remarkable.

77 Mr Connell submitted that the proposed amendment was not really a matter for amendment at all - it was not, he said, a new claim, and hence not a matter upon which leave should be given. Sims emphasises that a plaintiff should in the pleading make clear how republication is to be relied on - that is what the Plaintiffs seek to do.

78 The various amendments are sought to enable the Plaintiffs' case to be presented to its best advantage, a case in which two professional men claim to have been injured in their reputation by words said to have been uttered by Dr Wagstaff. There is no suggestion that the words used are not capable of injuring the Plaintiffs. At this stage, in accordance with practice, no detailed defence has been filed and there may well be significant issues yet to be determined but the case is one which (if it cannot be resolved) clearly should go to trial.

79 A further matter was raised as one going to discretion, namely the risk of concurrent findings by judge and jury. It is theoretically possible that the jury may find matter published by Dr Wagstaff to carry imputations which are defamatory, but to find that matter published by Regional does not carry defamatory imputations but this is unlikely. If that were to occur, the question would arise as to whether the Plaintiffs are entitled to rely on the republication by Regional as a basis for additional damages against Dr Wagstaff. It may be that the Court would treat the decision of the jury as against Regional as conclusive on the damages question as against the Plaintiffs in their claim against Dr Wagstaff so that there will be no opposing concurrent findings, but if it is accepted that the Plaintiffs have a right to plead republication as going only to damages, then the problem which will need to be resolved is not in my view a reason to refuse leave as a matter going to discretion. Even if it were not a matter going to discretion I would not regard it as sufficient weight even coupled with delay prior to the matter being set down for hearing before Cooper ADCJ to warrant refusal of leave.

80 There is no doubt in my mind that the interests of justice require that the Plaintiffs should be permitted to file the Third Further Amended Statement of Claim subject only to the question of repleading of paragraph 5 to deal with (6) above, in the form agreed.

81 It was agreed that if the amendment is allowed it should be allowed with an order that the Plaintiffs pay any costs thrown away by reason of the amendment but that Dr Wagstaff should pay the costs of the motion.

82 Dr Wagstaff, having failed in all but one minor point, should pay the costs of the motion.

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