Plaintiff v First Defendant

2 On 23 September 2008, the plaintiff issued the present proceedings against the same defendants. In those proceedings, the plaintiff claims damages in respect of an article written by the second defendant, and published by the first defendant in the newspaper and on its website, on 30 August 2008. That article is entitled "REVEALED Final Piece of X's Getaway Puzzle MOP TOP MYSTERY SOLVED". In response, the defendants have issued a summons, which is currently before me. By that application, the defendants seek orders that the proceeding be stayed, on the basis that it was commenced by the plaintiff without having first obtained leave to do so pursuant to s 23 of the Defamation Act 2005 (Vic). Alternatively, the defendants seek an order, pursuant to Rule 9.12 of the Supreme Court (General Civil Procedure) Rules 2005, that the present proceeding be consolidated with the first proceeding.

3 As indicated in the summons, the application by the defendants that this proceeding be stayed, is based on s 23 of the Defamation Act, which provides:

"If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought."

4 The defendants' application for a stay is based on three fundamental propositions, namely that:

(1) The plaintiff was required to seek leave to issue the present proceedings, because they relate to "matter" which is the "same or like" the "matter" which is the subject of the first proceeding.

(2) Section s 23 of the Defamation Act required the plaintiff to seek leave of the Court to issue the proceeding, before the proceeding was issued, and leave may not now be granted retrospectively.

(3) If leave may be granted retrospectively, nunc pro tunc, the Court should not do so. Rather, the plaintiff should be directed to amend his statement of claim, in the first proceeding, to add a claim in respect to the subject matter of this proceeding.

5 On the other hand the position of the plaintiff, in respect of the summons before me, is based on the following propositions:

(1) Section 23 of the Defamation Act does not apply to this proceeding, because this proceeding does not relate to the same or like matter as that to which the first proceeding relates.

(2) Alternatively, if s 23 does apply to this proceeding, leave may be granted to the plaintiff nunc pro tunc under s 23.

(3) In the circumstances of this case, it is appropriate that leave be granted to the plaintiff to issue separate proceedings arising out of the publication of the article published on 30 August 2008.

6 The first question, then, is whether the present proceedings relate to the same, or like, "matter" as that to which the first proceeding relates. Section 4 of the Defamation Act defines "matter" to include (inter alia) "an article or report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical". Thus, the question is whether the article, which is the subject of the present proceeding, is the same as, or like, the articles which are the subject of the first proceeding.

7 I turn, then, to the article which is the subject of the present proceeding. That article is contained on pages 1 and 7 of the edition of the Herald Sun newspaper published on Saturday, 30 August 2008. The headline, to which I have already referred, is set out, in bold print, on the first page. The first column of the article, comprising nine paragraphs, concerns the wig worn by the fugitive, Mr X, when he was arrested in Athens on warrants issued for his arrest in Australia. Those paragraphs allege that the wig has been traced to a hair restoration studio owned by the plaintiff. The article alleges that the wig was supplied to X one week before his appearance in the Supreme Court on serious drug importation charges. It was during the trial of those charges that X absconded while on bail. In the next three paragraphs, in the second column on the first page, the article states that the plaintiff is widely known in the corporate world, and that he is a prominent racehorse owner, owning the international sprinter Miss Andretti. The last two paragraphs of the article on page 1 state that the plaintiff owns a Kilmore farm once owned by the X family, and that the farm, and tens of millions of dollars in assets, were seized by the Director of Public Prosecutions after X's arrest on serious drug charges.

8 The article then resumes on page 7, under the headline "X wig's odyssey". The first paragraph states that Mr Buckley said that "that was the extent of his business association with X". In the next three paragraphs, the article states that the Herald Sun has previously alleged that X visited the plaintiff's Ultra Hair Studio in East Melbourne, during which hundreds of thousands of dollars in cash was handed over to X. The article alleges that the plaintiff arranged a bogus hair transplant contract to explain to law enforcement bodies X's regular visits to the studio, but that X never had that treatment. The article then states that the Herald Sun had previously reported that X and the plaintiff often lunched together, and that as part of their friendship the plaintiff permitted X to use his plush apartments at Southbank and on the Gold Coast. The article reports that the plaintiff is suing the Herald Sun, claiming that the cash payments were part of a lease agreement struck between the parties and the Director of Public Prosecutions, and that he denies giving X the use of his apartments. In the last two columns the article returns to the topic of the wig worn by X, and to the allegation, made on the first page of the article, that the wig originated from a box of second hand wigs stored in the back room of the Ultra Hair Studio in Flinders Lane.

9 Mr W Houghton QC, who appeared with Ms G Schoff for the defendants, submitted that the article, to which the present proceeding relates, is, in terms of s 23 of the Defamation Act, "like" the articles which are the subject of the first proceeding. He submitted that the word "like" should be given its ordinary English meaning, and he drew my attention to the definition of that adjective in the shorter Oxford Dictionary, as meaning something with the "same characteristics or quality", or something "quite similar". In oral submissions, Mr Houghton contended that the phrase "like matter" denotes an article which is substantially similar to another article which is the subject of previous proceedings. He submitted that the underlying intention of s 23 is to avoid a multiplicity of proceedings, based on articles which are either the same or which are similar.

10 Mr Houghton submitted that, in that sense, the article, which is the subject of the present proceeding, is "like" the articles to which the first proceeding relates. In particular, he noted that three of the five false innuendos pleaded by the plaintiff in this proceeding are the same, or very similar, to three of the innuendos pleaded by the plaintiff in respect of the four articles, which are the subject of the first proceeding. Mr Houghton also referred to sub-paragraph (b) of the particulars of aggravated damages, under paragraph 9 of the statement of claim, which alleges that the plaintiff published the article "... containing a repetition of many of the allegations that had been made in earlier articles published by the defendants on 5 December 2007 and 6 December 2007, which publications are the subject of proceedings in the Supreme Court of Victoria no 10170 of 2007 ...". Mr Houghton submitted that each of the articles in the first proceeding, and the article in the current proceeding, concern the plaintiff, each of them was published by the defendants to readers of the Herald Sun newspaper, and each of them concerns the same general subject matter, namely, the association between the plaintiff and X. Accordingly, Mr Houghton submitted that the article, which is the subject of this proceeding, is "like" the articles which are the subject of the first proceeding, for the purposes of s 23 of the Defamation Act.

11 In response, Mr S K Wilson QC, who appeared with Mr M Clarke for the plaintiff, agreed that the purpose of s 23 of the Defamation Act is to avoid a multiplicity of actions, brought in respect of the same or a similar publication. Mr Wilson submitted that, in that context, the article, which is the subject of the present proceedings, is not "like" any of the articles to which the first proceeding relates. Mr Wilson submitted that the principal, "focal", allegation in the article, which is the subject of this proceeding, is that the plaintiff supplied the wig used by X to abscond while he was on bail. Mr Wilson contended that the parts of the article, in the present proceeding, which repeat the allegations made in the earlier articles, were only intended to give context to the new allegation contained in the article, which is the subject of this proceeding. However, although the article, which is the subject of this proceeding, has some common features with the four articles which are the subject of the first proceeding, that factor does not mean that it is "like" those articles. He submitted that the article, with which the present proceeding is concerned, relates to an entirely different matter, published a substantial period after the articles which are the subject of the first proceeding. Accordingly, he submitted that s 23 of the Defamation Act does not apply to the article which is the subject of this proceeding.

12 The appropriate starting point, for determining this issue, is to be found in the plain ordinary meaning of the adjective "like". In that respect, I agree with Mr Houghton that the word "like" means "substantially similar". There is no reason why the word "like", in s 23, should be given other than as its ordinary English meaning. Clearly, for an article to be "like" another, it may not be identical to it. However, the juxtaposition of the adjective "like" with "same", in s 23, adds force to the view that, in order that one defamatory matter be "like" another, it must bear a substantial resemblance or similarity to the latter.

13 In determining whether the plaintiff has, in the present proceeding, claimed damages in relation to "like matter" to that which is the subject of the earlier proceeding, it is important to bear in mind that the relevant "likeness", posited by s 23, is between the articles in the two sets of proceedings, and not just between the imputations pleaded by the plaintiff in the two sets of proceedings. The imputations - or false innuendos - pleaded by the plaintiff in the two proceedings are the defamatory meanings which the plaintiff contends were borne by the publications in question. The test postulated by s 23 is not that of likeness between the sets of meanings pleaded and relied upon by the plaintiff. Rather, the relevant test is that of likeness between the articles or publications relied upon by the plaintiff in the two proceedings. Obviously, the imputations pleaded by the plaintiff in each proceeding are relevant, indicating the defamatory meanings which the plaintiff seeks to place on the two sets of publications. However, the imputations pleaded by the plaintiff, and any identity or commonality between them, cannot be determinative of the issue.

14 The construction of s 23, and the approach to the question which I must decide, is assisted by reference to the underlying purpose served by s 23. As counsel for both parties have pointed out, the obvious purpose of s 23 is to protect a defendant from being exposed to a multiplicity of proceedings arising out of identical, or substantially similar, publications. In the field of defamation law, the same or similar subject matter may become the subject of a number of different and separate causes of action which, theoretically, may each form the basis of separate proceedings. This consideration was highlighted by the New South Wales Law Reform Commission in its Report on Defamation dated 20 April 1971. As the Commission pointed out in that report, each publication of the same book, leaflet or newspaper gives rise to a multitude of causes of action, each time such a document is distributed to a separate recipient. Further, the same publication may give rise to two or more separate causes of action, where the publication is the basis of both false and true innuendos. It was those considerations which caused the Law Reform Commission to propose, as a solution, that a person should not have an uncontrolled liberty to sue a defendant, whom he has already sued, in respect of the same report, article, speech or other matter. The Commission proposed that a second action, in respect of the same report or document, should not be brought except by leave to the Court.[2] That proposal was adopted in s 9(3) of the Defamation Act 1974 (New South Wales)[3] That provision is in identical terms to s 23 of the New South Wales Defamation Act 2005 (New South Wales), which, in turn, is identical to s 23 of the Victorian Act.

15 That background to the enactment of s 23 is relevant, in that it reinforces my view that, in order that there be a relevant "likeness" for the purposes of s 23, the similarities between the matter sued on in the earlier proceedings, and the matter the subject of the present proceedings, must, in a real sense, be significant and substantial. It is not sufficient that there be some similarity, or common features, between the two sets of publications. Rather, the plain terms of the section, its underlying purpose, and its history, all lead to the same conclusion, namely, that in order that the publication in the instant proceeding be considered to be "like" the publication sued on in an earlier proceeding, there must be a real and substantial similarity between the two sets of publications.

16 Applying that test, in my view the article, which is the subject of this proceeding, is not "like" any of the articles, which are the subject of the first proceeding, for the purposes of s 23 of the Defamation Act. The content, focus and subject matter of the article in the present proceeding are significantly different to that of the four articles which are the subject of the first proceeding, so that the article to which the present proceeding relates could not be fairly characterised as substantially similar to any of the four articles to which the first proceeding relates.

17 I have set out the contents of the first article, relied on in the first proceeding, in my previous judgment.[4] The headline to that article - "Exclusive: Horse tycoon's cash trail to drug lord - X $1Mil mate" - characterises the thrust and import of the first article. The main focus of that article comprises an alleged illicit or nefarious commercial and financial relationship between the plaintiff and X. The article commences by alleging that the plaintiff had handed $1,000,000 cash to "drug czar" X in a series of weekly payments. It alleges a close financial and social association between X and the plaintiff. The article then refers to the plaintiff's ownership of the racehorse Miss Andretti, and the fact that X, who is banned from racecourses, has been suspected of disguising his ownership of racehorses by registering them in the names of friends and business associates. The article also alleges that the plaintiff permitted X to use his luxury Melbourne and Gold Coast apartments. It asserts that the plaintiff has a violent temper and is regarded as a commercial thug. It alleges that the plaintiff, in 1992, was convicted of fraud involving share dealing. The article then returns to the allegation that the plaintiff made regular cash payments to X at the plaintiff's Ultra Hair Studio. It describes how those payments were made. It alleges that the plaintiff had put in place a bogus hair treatment contract for X, in order to cover X's attendances at his hair studio. The article finishes by alleging that the plaintiff purchased X's Kilmore farm at an undervalue.

18 By contrast, in my view, the article which is the subject of the present proceeding has a significantly different subject matter and focus. The principal theme of the article, as indicated by the headline, concerns the supply by the plaintiff to X of the wig used by X, while as a fugitive, to disguise his appearance from the authorities. That topic is reinforced by the abbreviated headline to the second part of the article, which is on page 7 of the newspaper, entitled "X wig's odyssey". That subject matter and focus, of the article in the present proceeding, is significantly different to the subject matter and focus of the first article which is the subject of the first proceeding. In a broad sense, both articles are concerned with the relationship between X and the plaintiff. Indeed, and without expressing any view on the innuendos pleaded in the two proceedings, it is fair to observe that both articles infer that the relationship between the men was not entirely "innocent". However, that is where the similarities end, in the main focus and thrust of the two articles. The principal focus and subject matter of the first article, in the first proceeding, concerns the commercial and business relationship between the plaintiff and X. The principal focus and subject matter of the second article concerns the supply by the plaintiff to X of the wig.

19 It is true that the article, which is the subject of this case, does repeat some of the allegations which were made in the first article. In particular, it refers to the previous allegations made in the newspaper as to: cash transactions between X and the plaintiff; the bogus hair treatment contract; and the use by X of the plaintiff's apartments. However, the article, in the present proceeding, does not make those allegations as "new" allegations, but specifically refers to the fact that the Herald Sun had previously made those allegations. Notwithstanding its repetition of those allegations, the fact remains that the main import of the article concerns the supply of the wig by the plaintiff to X. The references, in that article, to the allegations previously made by the Herald Sun, are in short compass. Indeed, they occupy some three out of 35 paragraphs of the article. They are not referred to in the headline. They are included to provide some context to the new allegations made about X's wig. It would seem that they are intended to imply that the supply of the wig by the plaintiff to X was not coincidental, adventitious, or "innocent". In that way, the repetition of the earlier allegations adds "spice" to the allegations about X's wig in the article in this proceeding. However, they play a minor or subsidiary role in the article, which, as I have stated, has a different central theme.

20 It is also true that, numerically, more innuendos are pleaded arising from the repeated allegations in the article, than from the allegations relating to the wig. That statistic is largely the product of the number of the repeated allegations, which are compendiously summarised in the article which is the subject of these proceedings. However, that statistical imbalance does not alter the simple point that the article, with which this proceeding is concerned, has a different principal topic and focus. As I have stated, the question as to the application of s 23 is not resolved by a comparison of the innuendos pleaded by the plaintiff in each proceeding. Rather, the answer is found in a comparison of, and contrast between, the publications relied on in the two sets of proceedings.

21 In my view, thus analysed, the article, which is the subject of the present proceeding, could not be fairly characterised as being substantially similar, or "like", the first article which is the subject of the first proceeding, for the purpose of s 23 of the Defamation Act.

22 The second article, which is the subject of the first proceeding, concerns a subject matter which is entirely different to the subject matter of the article which is the subject of this proceeding. That article concerns the alleged relationship between the plaintiff and one Bruce Burrell, and it also refers to previous criminal proceedings against the plaintiff in the early 1990s, in which the plaintiff pleaded guilty to unlicensed security stealing. It could not be maintained that that article is "like" the article which is the subject of the present proceeding.

23 The third article, which is the subject of the first proceeding, is entitled "Waking in fright at boss's city pad". In that article, the defendants allege that the plaintiff had permitted X to use his Southbank apartment and his Surfer's Paradise apartment. While that allegation is repeated in the article which is the subject of this proceeding, otherwise the two articles deal with entirely different subject matters. The two articles are not "like" each other for the purposes of s 23 of the Defamation Act.

24 Finally, I turn to the fourth article in the first proceeding, which was published on 6 December, one day after the first three articles which are the subject of the first proceeding. That article largely repeats allegations made in the first article, namely, the payment of cash sums by the plaintiff to X, the alleged bogus hair treatment contract arranged by the plaintiff for X, the purchase by the plaintiff of X's Kilmore farm, and the ownership of a flat by the plaintiff at Southbank close to X's flat. For the reasons which I have expressed in relation to the first article which is the subject of the first proceeding, in my view the fourth article, equally, could not be characterised as being substantially similar or like the article which is the subject of the present proceeding.

25 Accordingly, I do not consider that the article, which is the subject of the present proceeding, is "like" any of the four articles which are the subject of the first proceeding. Thus, s 23 of the Defamation Act 2005 does not apply to the present proceeding, and the plaintiff was not required to obtain the leave of the Court, pursuant to that section, in order to bring the present proceedings.

26 The conclusion which I have expressed above makes it unnecessary for me to deal with the second issue which was raised by the submissions of counsel. That issue is whether, if the plaintiff was required to seek leave, under s 23 of the Defamation Act, to issue these proceedings, the Court may now, retrospectively, grant that leave to the plaintiff nunc pro tunc. In Spautz v Kirby[5], Hunt J held that the terms of s 9(3) of the Defamation Act 1974 required that leave, under that section, be obtained from the Court before the proceedings for defamation are issued. Although his Honour's judgment was the subject of an unsuccessful appeal, the Court of Appeal did not deal with that point.[6] Subsequently, in Lee & Anor v Kim[7] Handley JA (with whom Beazley JA and Santow JA agreed) referred to the decision of Hunt J in Spautz v Kirby, and observed that the decision of the High Court in Emanuele v Australian Securities Commission[8] may require that that decision be reviewed " ... but it is not necessary to do this in the present case".

27 Although argument was presented on this point, it is undesirable that I express any conclusion on it at this stage. Section 23 of the Defamation Act is a new provision in Victoria. Any view which I express on it, for the purposes of this judgment, would necessarily be obiter dictum. It is better that the question be left for an occasion when it is determinative of the proceeding.

28 As an alternative, the defendants, by their summons, seek an order that the present proceeding be consolidated with the first proceeding pursuant to Rule 9.12. That application was debated before me. However, in the course of submissions, Mr Wilson indicated that he would wish to advance a submission that, if the proceeding were consolidated, the plaintiff may be at a disadvantage, because of the effect of the cap on general damages prescribed by s 35(1) of the Defamation Act. Neither counsel had come prepared for such a submission. In particular, the plaintiff's counsel had not foreshadowed to the defendants' counsel that such a submission would be made. While I raised the question whether that point might be relevant, in any event, to the exercise of my discretion whether the two proceedings should be consolidated, nonetheless I have acceded to Mr Wilson's application to adjourn that part of the defendants' summons, in order to enable the plaintiff, and the defendants, to prepare their submissions in relation to it. I shall therefore refrain from dealing, in this judgment, with the alternative application by the defendants that the two sets of proceedings be consolidated.

[1] Buckley v The Herald & Weekly Times Pty Ltd & Anor [2008] VSC 459.

[2] Law Reform Commission of New South Wales Report on Defamation 1971 para 52.

[3] Singleton v John Fairfax & Sons Ltd [1982] 2 NSWLR 38, 42 (Hunt J).

[4] Buckley v The Herald & Weekly Times Pty Ltd & Anor [2008] VSC 459, [13].

[5] (1988) 21 NSWLR 27, 30.

[6] Kirby v Spautz (1990) 21 NSWLR 34.

[7] [2006] NSWCA 384; (2006) 68 NSWLR 433, 438 to 439; see also Macquarrie Bank Ltd & Anor v Berg [2002] NSWSC 254, [26] (Santow AJ).

[8] [1997] HCA 20; (1997) 188 CLR 114.