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[2014] WASC 185
Supreme Court of WA
2014-09-04
Martin J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : SMITH -v- MARSHALL [2014] WASC 185
Defamation - Abuse of process - Two actions - Common publication - Different defendants - Asserted co-publication - Discontinuance of first action - Short overlap period - Application to set aside second action
1 KENNETH MARTIN J: On 15 October 2012, Michelle Armitage sent a letter to the Australian Shareholders Association (ASA).
2 She sent the letter by email to three representatives of that Association, namely to a Mr Vas Kolesnikoss, Mr Stephen Mayne and a Ms Silvana Eccles.
3 The terms of Ms Armitage's letter were highly critical of the ASA's Western Australian representative - Mr John Campbell.
4 The criticisms were directed towards Mr Campbell's involvement with socalled dissident shareholders of a listed corporation, Empire Oil and Gas NL (Empire). There was a pending takeover bid for Empire by interests associated with the plaintiff, Mr Smith.
5 The second and third paragraph of Ms Armitage's letter to ASA read:
A friend of my mine, Brooke Andrews, spoke to Ms Eccles on 10 October 2012 and advised that it was important to write to you in relation to Mr Campbell as it has come to my attention that Mr Campbell, who is a shareholder of Empire Oil, has sided with Mr Smith and a dissident group of shareholders known as EMPOSA (Empireoil Shareholders Action Group). I firmly believe that Mr Campbell has a conflict of interest in this matter and certainly does not represent the majority of shareholders in Empire with respect to this matter.
Firstly, I would like to know whether the ASA Board are aware of the following points regarding Mr Smith considering that Mr Campbell has stated he will be supporting Smith for the Empire Board on your website. This has also been backed and verified by information on Smith's website on the 8th of October 2012 (empireoil-changenow).
6 Ms Armitage's letter went on to make some more negative remarks, under 22 distinct dot points, criticising Mr Smith, directed at his asserted unsuitability to become a director of Empire (ie if the takeover was successful).
7 The letter proceeded with observations as to why Ms Armitage contended Mr Campbell and the ASA should not be 'backing' Mr Smith, (presumably, in supporting the takeover bid). More followed as to Mr Campbell's position for the ASA.
I further believe that the ASA should refrain from printing anything regarding Smith's backing for the Board of Empire given his extremely dubious history within companies and [his] extremely poor lack of judgment considering involvement with bikies, Ponzi schemes, ASIC and Federal Court investigations. The ASA should be doing their homework with regards to people they back in companies within Australia for board positions. I am disgusted that Mr Campbell, with what I would believe is the support of the ASA, believes that backing Mr Smith would be the best thing for this company. I would appreciate a response and expect the ASA to act on this immediately.
9 The 15 October 2012 emailed communication to the ASA from Ms Armitage had been typed up. It comprised three pages: see affidavit of Nicola Emma Randall, affirmed 31 October 2013 at pages 5 7.
10 By its face page the email gave Ms Armitage's residential address, as a suburb of Perth, and her email address. This typed and then emailed letter was marked for the attention of Messrs Kolesnikoss and Mayne, and Ms Eccles.
11 The third page of the letter carried Ms Armitage's handwritten signature, seen above a place where this email had concluded and shown her typed name.
12 Ms Armitage's email to the ASA came (soon, it would appear) to the attention of Mr Smith. A swift consequence was Mr Smith's commencement of defamation proceedings against Ms Armitage in this court, by the action CIV 2056 of 2013. For convenience I refer to that action as the 'Armitage action'.
13 On 23 July 2013, Mr Smith by his lawyers, filed a statement of claim in that action. There ensued some early settlement discussions. Ms Armitage was represented by Metaxas & Hager.
14 As of August 2013 some proposals for a settlement were advancing. A resolution looks to have been concluded, in principle, at a meeting convened between the parties' respective solicitors on 3 October 2013.
15 Part of the settlement details involved Ms Armitage swearing a statutory declaration for the use of Mr Smith's lawyers, fully explaining the circumstances in which she had come to send her email of 15 October 2012 to the ASA representatives.
16 On 17 October 2013, Le Miere J made orders by consent in that action as between Mr Smith and Ms Armitage, thereby discontinuing the Armitage action, but with no orders as to costs (see affidavit of Nicolas Robert Stagg, sworn 18 December 2013, at page 50).
17 It would not appear to be controversial before me that there was ultimately reached an underlying contractual settlement as between Mr Smith and Ms Armitage, concluded through their solicitors and underlying the discontinuance of Mr Smith's action against Ms Armitage.
18 For the purpose of concluding the negotiations towards a settlement of the Armitage action, Ms Armitage ultimately swore two statutory declarations, of 21 August 2013 and 21 October 2013, respectively. Each was provided to Mr Smith's solicitors. They can be found in Mr Stagg's affidavit between pages 52 and 59 (with attachments).
19 By her first statutory declaration Ms Marshall revealed that her reference to 'Brooke Andrews' in her letter of 15 October 2012 (in the second paragraph quoted above), was in truth, a reference to Brooke Marshall. She also disclosed that all the information contained in her letter concerning Mr Smith had been provided to her by Brooke Marshall.
20 Ms Armitage declared that the only other person aware of Brooke Marshall's actions was John Lloyd Kane Marshall, Ms Marshall's brother.
21 Ms Armitage undertook by her first statutory declaration to appear as a witness to confirm these matters in any proceedings that were instituted by Mr Smith.
22 Mr Smith's solicitors were not satisfied with the first statutory declaration. They required a further declaration from Ms Armitage. This was forthcoming on 21 October 2013.
23 By the second declaration Ms Armitage now explained that John Lloyd Kane Marshall was generally known as Kane Marshall. He was the managing director of Key Petroleum Ltd, a publicly listed corporation on the Australian Securities Exchange (ASX). Ms Armitage also revealed she was Kane Marshall's personal assistant. She said that Kane Marshall was also involved in another company, called Odyssey Oil Pty Ltd.
24 Ms Armitage explained at this point that Kane and Brooke Marshall were brother and sister, being children of a Mr Craig Marshall.
25 Craig Marshall was the managing director of Empire.
26 Ms Armitage disclosed that Brooke Marshall provided consultancy services to Key Petroleum, as well as to Empire (Empire being the takeover target which I mentioned earlier).
27 As regards her emailed letter of 15 October 2012, Ms Armitage said:
28 From the above, Brooke Marshall emailed Kane Marshall on Friday 12 October 2012 at 2.03 pm, as regards a subject, 'ASA letter'. This said 'email to once read and put signature on'. Brooke Marshall included the email addresses of Mr Kolesnikoss, Mr Mayne and Ms Eccles.
29 On the same day at '1.29 pm' Kane Marshall had forwarded his sister's communication including the terms of the proposed email to Ms Armitage. She, as it now has emerged, was his personal secretary. The email had a subject heading 'FW: ASA letter'.
30 Pages 57 59 of Mr Stagg's affidavit display the contents for an unsigned typed letter to the ASA, marked for the attention of Messrs Kolesnikoss and Mayne, and Ms Eccles, albeit dated 11 October 2012. This unsigned content concludes with Ms Armitage's name at the end of the letter with a space for a signature to be inserted.
31 (I would observe that there may have been a time notation error made, or different time zones involved, given the stated time of 1.29 pm, which is actually earlier than the time of the first email at 2.03 pm. This temporal curiosity matters little to this exercise.)
This present action by Mr Smith against the Marshalls
32 By his writ of summons issued out of this court's defamation list on 4 October 2013, Mr Smith as plaintiff now commenced a second action, namely the present proceedings against Brooke and Kane Marshall, named as first and second defendant, respectively. I will refer to this present action as the 'Marshall action'.
33 As will be seen the Marshall action is also founded upon the Armitage letter, as published to the ASA by email on 15 October 2012, albeit the defendants are distinct.
34 The writ was personally served on Brooke Marshall on 8 October 2012, then on Kane Marshall, on 10 October 2012.
35 In due course a conditional appearance for both defendants was entered by their solicitors Bennett + Co, on 17 October 2013.
36 By their application of 31 October 2013, the first and second defendants seek to set aside Mr Smith's writ against them as an abuse of process. Orders sought are that (1) the plaintiff's writ of summons issued against the defendants on 4 October 2013 be set aside as an abuse of process; and (2) the plaintiff pay the costs of the defendants' application and of the action.
37 The Marshalls' application has been the subject of conferral, then my programming directions. No statement of claim has yet been filed by Mr Smith, bearing in mind the relief sought by the pending application.
38 At the heart of the present application lies the defendants' contention that there has arisen a serious abuse of process, by reason of a commencement by Mr Smith of two civil actions in this court. That is put albeit the two actions were only on foot for a short overlapping period and were directed against different defendants, over what is said to be the same publication, namely Ms Armitage's emailed letter to the ASA, of 15 October 2012.
39 The two actions in fact overlapped for 13 days. This was from 4 October 2013 when the Marshall action was commenced, to 17 October 2013, the day the Armitage action was discontinued. From then only the Marshall defamation action remained live in this court.
40 It is convenient at this point if I mention by way of comparison, the terms of the respective indorsements to the writs in both actions.
41 The indorsement in the Armitage action is reproduced at page 10 of Ms Randall's affidavit. It read:
1.2 contains information that imputes the matter complained of may have been:
1.2.2 published with the knowledge, consent or authority (express or implied) of,
(a) The publication actually complained of is the Armitage letter of 15 October 2012 to the ASA.
(b) The indorsement speculates as to a possible copublication by someone else (by the phrase 'may have been').
(c) The indorsement alludes to the possible copublication involvement of a 'Brooke Andrews' whom subsequent events now illuminate as being Brooke Marshall.
43 There is no issue that this first litigation against Ms Armitage did not ever culminate in the issue of a final judgment in favour of either party. The Armitage action was merely discontinued under consent orders. As to a discontinuance of civil litigation, I refer generally to Rules of the Supreme Court 1971 (WA) O 23. In particular, I mention O 23 r 4, concerning a recognised potential for a prospect of subsequent actions following a discontinuance, and for the stay of any subsequent action - if there are unmet costs in the discontinued action.
44 It follows that the event of a discontinuance of Mr Smith's defamation action against Ms Armitage carries no implications in terms of any res judicata, issue estoppel or even Anshun estoppel consequences against subsequent proceedings between the same parties.
45 A discontinuance of the Armitage action, as contrasted to the entry of a final judgment, also thwarts any later arguments concerning the associated release of any other concurrent tortfeasors alleged as being jointly involved in the publication of a defamatory letter to the ASA by Ms Armitage. Further actions against joint tortfeasors, if they existed, cannot be barred under common law rules concerning the effects of a judgment in further actions against joint tortfeasors. As to that principle, see generally James Hardie & Coy Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; (1998) 196 CLR 53 [3] and noting the common law rule in Brinsmead v Harrison (1871) LR 6 CP 584; (1872) LR 7 CP 547.
46 I turn to Mr Smith's writ of summons in the Marshall action. Relevantly, the indorsement to this writ says:
1.1 matter caused to be published, of and concerning the plaintiff, by the defendants, in a letter addressed to the Australian Shareholders Association dated 15 October 2012, (the Matter Complained Of), to Michelle Armitage, which matter is defamatory of the plaintiff;
1.2 the knowledge and intention of the defendants, and/or their authorisation, that the Matter Complained Of, defamatory of the plaintiff, be republished by Michelle Armitage to the Australian Shareholders Association, including Vas Kolesnikoss, Stephen Mayne and Silvana Eccles, of the Australian Shareholders Association; and
1.3 the knowing participation of the defendants in the publication of the Matter Complained Of, defamatory of the plaintiff, to the Australian Shareholders Association, including Vas Kolesnikoss, Stephen Mayne and Silvana Eccles, of the Australian Shareholders Association.
47 I can make these following preliminary observations as to this indorsement:
(a) The phrase 'to Michelle Armitage' in par 1.1 tends to suggest the defamatory publication complained of was the earlier publication to Ms Armitage by the Marshalls of the content of what later became Ms Armitage's own letter to the ASA. But if that is the case, then the date referred to in par 1.1 of 15 October 2012, is clearly wrong. Mr Stagg's affidavit at pages 56 and 57 shows that the emailed publication to Ms Armitage of the content of what later became her own letter to the ASA, occurred earlier under emails of Friday 12 October 2012 at 1.29 pm (attaching the proposed content, which appears under the date 11 October 2012).
Such inconsistencies and the obvious date error are perhaps explicable on the basis Mr Smith's solicitors did not hold then the more precise information about the background underlying the emails received by Ms Armitage, prior to then receiving Ms Armitage's second statutory declaration of 21 October 2013, particularly attachment B thereto (see par 15).
(b) Paragraph 1.2 of the indorsement refers to the matter complained of being 'republished' to the ASA, by Michelle Armitage. That reference to a republication would tend to support my assessment above. In other words, the Marshalls were being asserted as liable by Mr Smith for their publication of defamatory words to Ms Armitage, and as well, for the natural and probable consequences of their initial defamatory publication to her, namely what she then sent to the ASA. The principles surrounding a republication were explained by McColl JA (with whom Giles and Campbell JJA agreed) in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 [121] [128]. See also, Slipper v British Broadcasting Corporation [1991] 1 QB 283, 296, 301 302.
Hence the cause of action being raised against the Marshalls arose out of their initial publication to Ms Armitage, and then the probable consequence of her subsequent republication to three members of the ASA.
This grievance as raised in the indorsement, does not look to be advanced as an allegation saying that what was sent to the ASA would merely be taken into account in assessing the damages allegedly suffered by Mr Smith from what the Marshalls sent to Ms Armitage: see Sims v Wran [1984] 1 NSWLR 317, 320 and Slipper v British Broadcasting Corporation (296 297, 302); Speight v Gosnay (1891) 60 LJ QB 231, 232 per Lopes LJ.
There is of course a conceptual distinction as between a contention that the original publisher is directly liable for foreseeable subsequent republications, as opposed to merely having the subsequent republications assessed as being relevant to the overall damages arising out of an original defamatory publication. The distinction can be seen in McColl JA's reasons in Habib, at [176] [177].
(c) By contrast to an asserted liability of the defendants under par 1.2 for republications (either directly, or as to damages), par 1.3 then contends for the direct involvement and participation of the Marshalls in the publication of Ms Armitage's letter of 15 October 2012 to the ASA. This presents as an alleged liability in defamation on the basis of the Marshalls' 'knowing participation ... in the publication of the letter'. Such a cause of action asserts their joint liability with Ms Armitage as principals. I refer again in illustration of the point to McColl JA in Habib [121], her Honour in turn referring to Milmo P and Rogers WVH, (eds) Gatley on Libel and Slander (11th ed, 2008) [6.16]:
All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggests illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331, 364 per Isaacs J. Such persons are regarded as joint tortfeasors: Webb v Bloch (at 359) per Knox CJ.
I would note as well, the like observations by Le Miere J in Kenyon v Sabatino [2013] WASC 76 [14] [19]. At [19] his Honour said:
As a general principle everyone who knowingly takes part in communicating defamatory material, in whatever degree, is a publisher and is therefore liable for defamation. Enquiry into the precise degree of involvement is unnecessary. However, practical guidance as to the operation of the principle can be usefully obtained from a consideration of circumstances in which a person has been held to be a publisher.
48 To the extent of identifying any potential overlaps as between the two actions from their respective indorsements, in my view, an overlap may only arise out of par 1.3 in the Marshall action. This would be on a basis of the Marshalls' alleged 'knowing participation ... in the publication to the ASA' with Ms Armitage. That par 1.3 scenario of direct involvement by the Marshalls as copublishers with Ms Armitage, raises their potential liability as 'joint tortfeasors', applying the principle from Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331 to Ms Armitage's 15 October 2012 publication to the ASA members.
49 In contrast, the nature and extent of a republisher's liability in defamation is not necessarily the same as the originator's: see Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43, 49 50:
When a defamatory publication purports to repeat or report the defamatory statement of another it is an essentially different libel from the one where the same imputation is conveyed directly. It may require to be charged or defended differently, but is nonetheless libel.
Defendants' argument raising alleged abuse of process
50 The defendants do not seek a stay of the Marshall action, notwithstanding that a stay, either temporary or permanent, would be the usual, albeit not exclusive, remedy against an abuse of process arising from the filing of a multiplicity of overlapping or oppressive civil proceedings. Here, however, the defendants' application goes well beyond seeking a stay. It seeks that the Marshall action 'be set aside as an abuse of process'. In other words a summary dismissal of the action of Mr Smith against the Marshalls is sought by them.
51 Abuse of process is recognised to be a doctrine of considerable breadth. It is incapable of precise delineation. Consequently, it is necessary to focus first, upon the character of the alleged abuse of process that is complained of: see again, the observations of McColl JA in Habib [78] [80] concerning abuse of process including as to the various senses and contexts in which that terminology may be used. Her Honour in turn noted recent observations of the High Court in PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR 384 [3]. There, French CJ, Gummow, Hayne, Crennan and Kiefel JJ observed that many cases of abuse of process exhibited at least one of three characteristics:
(a) the invoking of a court's processes for an illegitimate or collateral purpose;
(b) the use of the court's procedures would be unjustifiably oppressive to a party; or
(c) the use of the court's procedures would bring the administration of justice into disrepute.
The present application by the Marshalls, broadly speaking, would look to invoke categories (b) or (c).
52 At [79] of Habib, McColl JA noted that the power of a court to stay proceedings permanently, on the ground of abuse of process must be exercised with caution, and only in the most exceptional or extreme cases - mentioning the observations in Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 392 (Mason CJ, Deane and Dawson JJ). I also note McColl JA's citation of Lord Bingham of Cornhill in Johnson v Gore Wood & Co (a firm) [2000] UKHL 65; [2002] 2 AC 1, 31. Lord Bingham observed:
It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, meritsbased judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.
53 Some further observations by McColl JA in Habib assist. Her Honour said:
As the foregoing discussion has revealed, in any case in which a party contends that the principles developed to ensure the finality of litigation and to avoid the scandal of conflicting judgments should be applied, it is essential to examine the circumstances with great care to see whether either principle will be offended [161].
54 The grievance of the Marshalls against Mr Smith, said to constitute an abuse of process, does not emerge that crisply from the defendants' written outline of submissions of 26 November 2013, or even their reply submissions of 14 January 2014. However, the nub appears to be that the Marshalls ought properly to have been joined in as defendants in the earlier Armitage action rather than in a second action - because they were effectively being sued, by the Marshall action, in respect of the very same defamatory publication of Ms Armitage to the ASA. The Marshalls assert:
6.1 joined the Defendants as Second and Third Defendants to the Armitage Proceedings; or
6.2 made an application to join the Defendants as Second and Third Defendants in the Armitage Proceedings.
55 The two actions brought in this court were on foot together, only for the relatively brief period of 13 days. But the overlap period is repeatedly raised as being of fundamental significance to the abuse of process and dismissal arguments. In my view, it is not.
56 However, I should say first, by reference to the submission made at par 6.1 above, that joinder of the Marshalls as extra defendants to the Armitage action would have required the leave of this court. This is by reason of the character of what would have been a necessary amendment to the writ and indorsement of claim to add extra parties: see RSC O 21, r 1(3)(a), r 1(3)(b) and r 5(1).
57 The key issue of principle then, is why there ever arose and remains any abuse of process, in circumstances where Ms Armitage and the Marshalls are all alleged to be joint tortfeasors by their mutual copublication of Ms Armitage's letter to the ASA on 15 October 2012. What is the underlying principle the defendants advance in order to establish that asserted abuse of process?
58 The defendants' written submissions contending for abuse of process rely on a number of earlier cases for support. On analysis, none provide it.
59 First is a venerable decision of Collins MR, with whom Stirling LJ agreed, in Williams v Hunt [1905] 1 KB 512, 514. The wellestablished principle extracted from that decision is '[w]here proceedings have been started, it is an abuse of the Court to divide the remedy where there is a complete remedy in the Court in which the suit was started'. The almost selfevident principle may be accepted. It is hardly controversial.
60 But in Williams v Hunt two actions had been initiated against the same defendant. The underlying problem of principle was the failure of the plaintiff to seek all relief desired against the one defendant in the first action. And, Williams v Hunt was not a defamation case. That of course is not this case, where there are different defendants in the two actions.
61 However, the significance of Williams v Hunt lies, according to the defendants, more in the fact that its underlying principle was later successfully invoked in the Supreme Court of Canada in Thomson v Lambert [1938] SCR 253, in a defamation context. This appears to be the most significant decision raised by the Marshalls. The 1938 decision of the Supreme Court reversed a decision of the Ontario Court of Appeal in Lambert v Thomson [1937] OR 341, in respect of multiple actions for libel.
62 McColl JA closely analysed the Thomson v Lambert line in Habib [129] [141]. Cases she discussed included Williams v Hunt, Haines v Australian Broadcasting Corporation [1995] NSWSC 136; (1995) 43 NSWLR 404; Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255; Meckiff v Simpson [1968] VicRp 7; [1968] VR 62; Maple v David Syme & Co Pty Ltd [1975] 1 NSWLR 97; Harris v 718932 Pty Ltd [2003] NSWCA 38; (2003) 56 NSWLR 276; Dow Jones and Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 and Lange v Australian Broadcasting Corporation (Unreported, NSWSC, Library No 9604439, 6 September 1996). I would respectfully adopt that comprehensive analysis.
63 This line of cases is summarised at [141], in conclusion of the analysis by McColl JA in these terms:
The 'complete remedy' line of authority applies in the defamation context, in my view, where the plaintiff seeks to sue the 'same defendant' (in the Haines sense) in respect of the same publication.
64 In the result in Habib, her Honour proceeded to assess that line of case authority as inapplicable, observing:
I have concluded, for reasons which appear below, that the appellant did not seek to hold Nationwide liable as a principal in the publication of the radio broadcasts. This line of authority does not, therefore, assist the respondents [141].
65 McColl JA's reference at [141] to 'same defendant' in the Haines sense invoked her prior observations at [134], as to what Hunt CJ at CL had earlier said concerning instances 'where multiple defamation proceedings based upon the same material have been brought against the same defendant where all could readily have been comprehended within the one action'.
66 The term 'same defendant' was used by McColl JA as equating to Hunt CJ at CL's reference to 'those principally responsible for publishing of the same publication, as were those sued in Thomson' [141].
67 Thomson v Lambert was examined and explained at [132] [133] of the Habib reasons, by reference to the observations of majority justices Cannon, Crocket and Davis JJ, with whom then Canadian Chief Justice, Sir Lyman Duff, substantially agreed. As enunciated in Thomson v Lambert at 254 a plaintiff 'should not be permitted to go on suing one person after another ad infinitum where a complete remedy was available in one action'. As to that principle, in Habib, McColl JA [133] observed:
Their conclusion was clearly based on the proposition that all those the plaintiffs had sued, or sought to sue, were jointly liable for the original publication (a point Duff CJ expressly made [at 267]). So regarded, they were, like the mortgagor in Williams v Hunt, persons against whom the plaintiffs had the identical cause of action. (my emphasis in bold)
68 Underlying Thomson v Lambert, I note (271) that factually a jury had found for respondent plaintiffs (in an initial defamation action in Manitoba Courts against Imperial News Co for damages for libel). That first action had been 'carried ... down to judgment' (270). At 271 it was observed, the jury found for the respondents, awarding each $1,500 damages, which amount was duly paid with taxed costs. Then a second action was commenced in Manitoba against another defendant - United Cigar Stores Ltd. This action was settled by payment to the respondents of $2,000 damages and costs of $700. A third action was instituted in Manitoba against other defendants. It was taken to trial where another judgment was obtained, in the amounts of $100 and $50. Further actions were commenced in Manitoba courts against different store proprietors or newsagencies in respect of the same offending article in the newspaper publication, Hush. In all about twelve or 13 actions appear to have been brought in Manitoba. As to the precise number, one of the respondents had said, 'I can't tell exactly, there is (sic) so many' (271).
69 The appeal which reached the Supreme Court of Canada concerned even further litigation brought by the same plaintiffs but now instituted in the province of Ontario.
70 Whilst recently explaining Thomson v Lambert in Fairfax Media Publications Pty Ltd v Cummings [2013] ACTCA 37; (2013) 280 FLR 238, Katzmann J (with whom Burns J agreed) said, at [73]:
In Lambert the respondents had recovered damages for the same defamatory publication in more than a dozen actions brought against distributors and vendors in one state. They then tried to recover damages for the same publication in another state on the basis of the location of the managing editor and publisher of the newspaper in which the defamatory articles appeared. Judgment having been obtained against the distributors and vendors in Manitoba, the court held that no action would then lie against the editor and publisher in Ontario for the same publication based upon the mere fact of publication to the distributors in Manitoba.
72 Here it is contended by the Marshalls, relying primarily on the Thomson v Lambert line, that '[i]t was not open to the Plaintiff to issue a Writ in the within proceedings in circumstances where proceedings were already on foot with respect to the same Publication. The subsequent conduct of discontinuing the Armitage proceedings is not a cure for the abuse'.
Consideration of the Marshall's abuse of process submission
73 On my assessment, the Marshalls' contention, aligns closely to the first limb of a working proposition, as was advanced by senior counsel on the part of the unsuccessful respondent radio stations in Habib. That limb of the proposition was:
[W]here several persons are responsible for the publication of identical material, and an action is brought against one of the publishers which proceeds to judgment or is settled, then any further action against other persons responsible for the publication is an abuse of process [57].
74 There was a second limb to the working proposition, as to the effects of a jury verdict favouring defendants in the New South Wales Supreme Court, and a following consent dismissal judgment entered in respect of the entirety of those proceedings. This limb was that a consent judgment to dismissal at first instance in Habib was to the entirety of that litigation. It was analogous to the reaching of final settlements in resolution of cases such as Thomson v Lambert, as had happened in another decision, Schellenberg v BBC [2000] EMLR 296.
75 My reading of the Habib reasons is to the effect that the (first limb working proposition) arguments put by the unsuccessful respondent, were not ultimately accepted. However, the New South Wales Court of Appeal did, as I would assess it in Habib, accept the 'complete remedy' line of authority in defamation actions as regards parties who are assessed as 'the same defendant': see [141]. I would as well, for present purposes.
76 But ultimately, the question at the end of the day is whether, taking account of the key policy principles applicable in an abuse of process evaluation, including ensuring the finality of litigation, avoiding the scandal of conflicting judgments and avoiding the oppression arising to a defendant from multiple litigation suits, there is any abuse of process found to be presenting here: see Habib [161].
77 My conclusion is that the Marshalls have not established that the defamation action brought against them by Mr Smith is an abuse of process. Nor should the Marshall action be set aside. The reasons for this conclusion, in summary, are:
(a) There can arise no potential scandal of possibly conflicting judgments. The Armitage proceedings were wholly discontinued by consent. No final judgment for or against any party in that as now terminated action, ever issued.
(b) There was only a minimal temporal overlap period, as between two live actions. On my assessment, the indorsement of claim at par 1.3 of the Marshall action, seeking to hold the Marshalls directly liable for knowing participation in a co-publication (with Ms Armitage) to the ASA does look to be raising a scenario of potential joint liability as concurrent tortfeasors as between Ms Armitage and the Marshalls. However, the indorsement under pars 1.1 and 1.2 looks only to invoke liability on a basis of alleged republications.
(c) The action against Ms Armitage was discontinued under consent orders. In Thomson v Lambert numerous actions brought in the Manitoba courts had all proceeded to final judgments. Plainly that did not occur here, given the ending of the Armitage action by discontinuance. Thomson v Lambert is clearly distinguishable upon its facts. Katzmann J reached a similar conclusion concerning an abuse of process argument grounded on that Canadian case in Fairfax Media Publications Pty Ltd v Cummings.
(d) Had the Armitage action not been discontinued, some issue might just have arisen over running together two different actions separately - from an inefficiency and case management perspective. But the two actions here were only on foot together for 13 days. That feature might at best have occasioned an application for a stay, whilst the two actions both remained live and on foot. However, the discontinuance of the Armitage action on 17 October 2013 did away with any issues possibly arising from a 'complete remedy' line of case authority.
(e) Undoubtedly, Mr Smith and his solicitors had faced some looming time constraints, presenting from the strict oneyear limitation period arising out of s 15 of the Limitation Act 2005 (WA). I accept that it was more convenient for Mr Smith's lawyers in October 2013 to simply issue fresh proceedings against the Marshalls on 4 October 2013 with a limitation period deadline looming, depending upon the formulation of the causes of action, at midnight, on either 10 or 14 October 2013.
Issuing the second action was logistically easier. It was an option preferable to the alternate scenario of applying for the leave of the court, by RSC O 21 r 1, to add the Marshalls as extra defendants to the existing Armitage action, then seeking to effect service upon the Marshalls before those 12 month limitation dates passed: see RSC O 18 r 6. On that service point, the plaintiff referred in submissions to the reasons of Wheeler J in Bainbridge v Lawton [2002] WASC 293 [11], which I would follow. In that regard, I further note the observations of McLure J, as her Honour then was, in Brandsma & Crockett Pty Ltd v Heindal Pty Ltd [2002] WASCA 96, to which Wheeler J referred.
(f) Most significantly, in a context of alleged abuse of process, the interlocutory facts, as I assess them here, reveal a situation in which Mr Smith and his solicitors were increasingly learning more about the underlying circumstances surrounding the drivers behind Ms Armitage's communication to the ASA of 15 October 2012. I am referring first to a most curious reference in Ms Armitage's letter to a 'Brooke Andrews' the name then used effectively as a pseudonym to misidentify Brooke Marshall. Second was the underlying situation in which it eventually emerged that the content of the 15 October 2012 communication had effectively been wholly drafted up for Ms Armitage, without her holding any personal knowledge as to the multiple criticisms she purported to hold of Mr Smith and others, to copy and then send on herself to the ASA as her own concerns when clearly they were someone else's concerns. Third is the failure to disclose any connection to the Marshalls anywhere in that letter.
There was no mention in the letter of a connection as between the Marshalls and corporations associated with the takeover target, which was the subject of the ASA communication. Hence, I detect some arguably covert behaviour underlying the Armitage communication to the ASA, obscuring the fact Ms Armitage was the personal assistant to Kane Marshall, and that he and his sister Brooke, were the children of Craig Marshall, he being the managing director of Empire, the very entity the subject of a takeover bid by Mr Smith. This was the very takeover bid that had attracted support of the WA representative of the ASA, Mr John Campbell.
The 15 October 2012 Armitage communication sought to make a strong and apparently wholly independent complaint about Mr Campbell's and thereby ASA's support for the looming Empire takeover by Mr Smith, by covertly using the medium of Ms Armitage (an individual ASA member and shareholder). In truth, her letter of complaint to the ASA, as to its every word, was wholly prepared for her by the defendants - persons holding a close family connection to the managing director of the takeover target. None of these connections were disclosed. This is concerning, especially where the defendants direct an 'abuse of process' grievance against Mr Smith.
The communication also arises in circumstances where it would appear Ms Armitage had been told that a letter in like terms was being sent by Brooke Marshall, independently to the ASA. Yet no such letter appears to have been sent.
Such circumstances, lately discovered by Mr Smith and his lawyers out of Ms Armitage's two statutory declarations, present legitimate reasons to quarantine and first dispose of the Armitage action, as has occurred by discontinuance, before litigating against the Marshalls.
That the two actions briefly overlapped for a period of 13 days does not here, on my assessment, amount to an abuse of process, even if all the parties are ultimately assessed as copublishers of the Armitage letter to the ASA. Even if it had been a problem, a minor temporal overlap was resolved by the discontinuance of the first action against Ms Armitage.
(g) Significantly, no stay was sought in the present case. The application is by the Marshalls to set aside the writ of summons. That result goes too far in principle in any event. No case authority cited supports that extreme proposition or outcome. By the time the defendants applied to dismiss the second action as an abuse of process on 1 November 2013, the Armitage action had been discontinued for almost two weeks. At the time of filing the Marshalls' application there was clearly by then, no basis for contending that there was any subsisting misuse of the court's processes. There was no offending against some underlying principle raising say, circumstances of oppression against the same defendants, potential for inconsistent final judgments, or the litigating for an ulterior purpose, or generally, of any conduct which might otherwise call into disrepute the administration of justice.
78 The application by the defendants to set aside the writ must be refused. As requested, I will hear the parties on the papers as to the costs of this application, in light of my end outcome favouring the plaintiff. I will receive the plaintiff's written submissions and any further affidavit materials relied upon as to costs, within 21 days from the publication of these reasons. A like period of 21 days is then offered to the defendants for their materials. The parties have the opportunity to make a submission to me as to whether there should be a further in court hearing as to the costs of this application, or whether the issue of costs can be dealt with on the papers. I will resolve how to proceed upon receipt of the parties' materials.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : SMITH -v- MARSHALL [2014] WASC 185 (S)
Costs - Indemnity costs application - Strikeout application dismissed - Taxed costs awarded with scale limit removed
1 KENNETH MARTIN J: In the aftermath of my reasons for decision in this action of 6 June 2014 rejecting the defendants' application to dismiss the plaintiff's defamation action, the successful plaintiff now moves on the papers for costs orders assessed on an indemnity basis.
2 The principles applicable to an application for indemnity costs are seen in the Court of Appeal decision Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10]. Essentially, the plaintiff contends that the defendants' application to dismiss his defamation action was always hopelessly misconceived, that this had been expressly pointed out to the defendants' solicitors well prior to the application being argued, and that the ultimately successful result favouring the plaintiff resisting the application has vindicated his position that the application was always hopeless. So, it is argued the court now ought, by an indemnity costs order, sanction the defendants: see principle 10 from Swansdale and par 12 of the plaintiff's written submission of 27 June 2014.
3 By agreement of the parties the costs application is determined on the papers. To that end, I received the plaintiffs' written submissions on costs of 27 June 2014 (filed in accordance with [78] of my reasons of 6 June 2014). Those submissions were responded to by the defendants' written submissions of 18 July 2014, essentially resisting the contention that their unsuccessful application was hopeless, arguing instead that there had been a reasonable basis to bring it. The defendants correlatively submit (ambitiously) that the appropriate dispositive orders as regards the unsuccessful application ought be that 'there is no order as to costs'.
4 The plaintiff's application for indemnity costs, from an evidentiary perspective, is supported by an affidavit of Nicholas Robert Stagg sworn 27 June 2014. This is essentially a solicitor's affidavit appending some correspondence passing between the respective solicitors for the parties in the period between 16 October and 15 November 2013.
5 From an evidentiary perspective, I have also considered the affidavit of Nicola Emma Randall, affirmed 31 October 2013 and which had been relied upon by the defendants in respect of the substantive dismissal application.
6 I have evaluated this material in a context of considering the appropriate dispositive costs order for the application, bearing in mind the court's discretion in respect of the costs order, the prima facie presumption that a successful party will ordinarily be entitled to receive its taxed costs of the application, and a governing criterion that a court's discretion in respect of the appropriate costs order must be exercised judicially in accord with established principle.
7 Evaluating the parties' submissions as regards costs in the aftermath of the plaintiff's ultimate success in resisting the defendants' strikeout application, I am of the view the plaintiff should receive an award for his taxed costs in respect of resisting the application which, after ascertainment on a taxation, should be payable immediately. However, correlatively, I am not persuaded from the materials and my personal insights having determined the application as case manager that the deficiencies in the defendants' application as ultimately ascertained rise to the level of supporting sanction by an award of indemnity costs. In summary, I would assess the defendants' dismissal application as mildly supported under aspects of a line of case authority that warranted some evaluation. In the end, the defendants' dismissal arguments towards the action were not accepted by me but, even with the benefit of hindsight, I would not evaluate them as so hopeless as to support adverse costs orders at the level of solicitor/client indemnification.
8 Nevertheless, I am satisfied that the dimensions of this interlocutory application were important and potentially fatal to the plaintiff's action if accepted. They need to be treated seriously. The amount of diverse case law canvassed in the process would alone support an increase in the amount of costs potentially recoverable by the successful plaintiff on a taxation of its costs. In other words, I assess the dual limbs of the Heartlink formulation (see the decision of Martin CJ in Heartlink Ltd v Jones [2007] WASC 254 (S) [11] - [12]) demonstrates both inadequacy in the level of the current scale and fulfilment of the second limb in terms of unusual difficulty and complexity in respect of the argument to be met. Accordingly, the scale limit under item 10(a) of the Supreme Court Scale of Costs in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA) should be lifted for the purposes of a taxation. The consequence is simply that a taxation may proceed before a taxing officer without the intrusion of that scale limit being a limiting consideration. In my view, orders in those terms are appropriate in the circumstances.
(1998) 196 CLR 53
(1928) 41 CLR 331
(2009) 83 ALJR 384
(1993) 177 CLR 378
(1995) 43 NSWLR 404
(2003) 56 NSWLR 276
(2002) 210 CLR 575
(2013) 280 FLR 238