9 It was submitted that where the foundation of liability in sued defendants rests upon vicarious liability based upon either the relationship of master and servant or principal and agent, the determination of that liability is a matter of fact and law for the trial judge, and not one reserved to the tribunal of fact for the purposes of s7A, i.e. the jury. Essential to that submission is that the named defendant whom it is sought to make vicariously liable for the sixth defendant's publication, is not, if found vicariously liable, thereby a publisher. It is a liability distinct from that of the tortfeasor the publisher, in this case the sixth defendant. Thus a deal of time was spent on distinguishing the circumstances of the facts in the High Court decision of Webb v Bloch (1928) 41 CLR 331 where defendants played an active role, relevantly to that case, in the publication. This is said to be not a Webb v Bloch case; it may fall, in due course on the evidence to be called and decided upon by the trial judge, within the circumstances with which the High Court was concerned in Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41; cf New South Wales Country Press Co-operative Co. Ltd v George Andrew Stewart (1911) 12 CLR 481.
10 Here the allegation is made in the amended pleading of publication by the sixth defendant which, together with the two consequential issues of fact to which I have referred, will be for the jury's determination in the normal course.
11 In Griffith v Australian Broadcasting Corporation [2003] NSWSC 298 I held that the issue of republication, as there identified, was not the subject for determination by the jury under s7A; see also Doan & Anor v Advanced Microdevices Inc & Ors [2003] NSWSC 560 at [6].
12 Whilst the order sought under SCR Pt 31 r 2 would limit the jury's role to determining the issues of publication involving the sixth defendant, should the order be made, the other defendants would have a legitimate interest in the outcome of the s7A trial and, subject to directions as to trial management, would be free to participate.
13 With all these propositions I am in agreement.
14 I reject the submission that the question of vicarious liability was in effect a matter of defence, and thus fell within s7A(4)(a). Vicarious liability is a matter for the plaintiffs to prove, but by its very nature, it not being involved with the proof of the publication of the words by the relevant defendant, it falls without the jury's role under s7A, I find.
15 The applicant/defendants in the end will be concerned, given the order having been made, and given a jury verdict favourable to the plaintiff, with whether or not the plaintiff can prove circumstances that give rise to liability in those defendants vicariously for the tort of publishing the slander committed by the sixth defendant.
16 Up to this point one would think the matter easily could be disposed of. However, as Mr Dawson for the plaintiff pointed out, the particulars under "B", above, purport to make a case against these defendants as "publishers". Mr Dawson acknowledged, as indeed did the defendants, that if this was a Webb v Bloch case it would have to go to the jury on those issues. That is correct, because there the defendants are alleged to be publishers in the sense provided for in the judgment of Isaacs J at 363-366.
17 Here, Mr Dawson submits, in the light of these particulars, such an allegation in fact is being made. Further, if the relevant defendants are vicarious liable, they should be regarded as publishers in any event, and thus the issues be remitted to the jury. I have already concluded otherwise than as asserted in the second part of these submissions.
18 As I have stated above, I do not know why McCabes sought the particulars to which the answers were provided in "B" above. But what is provided by way of particulars, to the extent that they make some sense, is not in conformity with the pleading and thus I propose to strike out those particulars under "B". Whether the plaintiff would then wish to amend the statement of claim will be a matter for him.
19 On analysis it appears that B(1), (2) and (3) seem to be groping for some case of liability for republication. If that is the situation it must be pleaded appropriately. The balance of the particulars, B(4)-(8), seem to be doing no more than reasserting the vicarious liability claim on the basis of either servant or agent of McCabes.
20 As I have said, in the circumstances, the purported particularisation of a Webb v Bloch kind of case does not cure the absence any relevant allegation thereof in the pleading, and those particulars under "B" are struck out.
21 I am otherwise persuaded that an order in accordance with paragraph 2 of the notice of motion be made, and accordingly I order that:
- Pursuant to SCR Pt 31 r 2 questions as to whether the matter complained of was published by the sixth defendant and, if it was, whether it carries any imputation defamatory of the plaintiff, be tried by jury before and separately from any other question in the proceedings.
- The plaintiff is to pay the first, second, third and fourth defendants' costs of the motion.