Thompson, E.C. v. Australian Capital Television Pty Ltd & Anor [1994] FCA 1042

Federal Court of Australia|1994-12-19|Before: Ryan JJ

DEFAMATION - defence of "innocent dissemination" - whether available to a television broadcaster who received a program from a station in another area and telecast it in its own area without change - discussion of the nature of the defence - whether in the circumstances of the particular case there was negligence on the part of the television company within the Meaning of the principle of the defence - reference to questions of policy.

JOINT TORTS ) - effect of release of one joint tortfeasor - whether s. 11 of the Law Reform (Miscellaneous Provisions) Act 1955 (ACT) abolished the common law rule that a release of one joint tortfeasor operates as a release of all - discussion of authorities - discussion of rule that Acts altering the common law should be construed as doing so only so far as is necessary to give effect to their provisions - discussion of relationship between release rule and recovery of contribution by one joint tortfeasor from another.

Weldon v. "The Times" Book Company (Limited) (1912) 28 TLR 143 McLeod v. St. Aubyn [1899] AC 549

Vizetelly v. Mudie's Select Library, Limited [1900] 2 QB 170 Sun Life Assurance Company of Canada v. W.H. Smith and Son Limited (1933) 150 LT 211

J F and B E Palmer Pty Ltd v. Blowers and Lowe Pty Ltd (1987) 16 FCR 89

XL Petroleum (N.S.W.) Proprietary Limited v. Caltex Oil (Australia) Proprietary Limited (1985) 155 CLR 448

Apley Estates Company Limited v. De Bernales [1947] Ch 217 Dixon v. The Queen in Right of British Columbia (1979) 99 DLR (3d) 652

Dixon v. The Queen in Right of British Columbia (1980) 128 DLR (3d) 389

State of New South Wales v. McCloy Hutcherson Pty Ltd (1993) 43 FCR 489

Corporate Affairs Commission of New South Wales v. Yuill (1991) 172 CLR 319

Hocking v. Western Australian Bank (1909) 9 CLR 738

American Dairy Queen (Q'ld) Proprietary Limited v. Blue Rio Proprietary Limited (1981) 147 CLR 677

Black-Clawson International Ltd v. Papierwerke Waldhof- Aschaffenburg [1975} AC 591

Brambles Constructions Pty Limited v. Helmers (1966) 114 CLR Bitumen and Oil Refineries (Australia) Limited v. Commissioner

EDWARD CECIL THOMPSON v. AUSTRALIAN CAPITAL TELEVISION PTY LTD & ANOR ACTG 4 of 1994

Burchett, Miles and Ryan JJ. Canberra 19 December 1994

IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL

PUBLISHING AND BROADCASTING PTY LTD and TCN CHANNEL NINE PTY LTD

There be no order as to the costs of the appeal.

IN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) ACTG 4 of 1994 GENERAL DIVISION )

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: EDWARD CECIL THOMPSON Appellant AND: AUSTRALIAN CAPITAL TELEVISION PTY LTD

AND: PUBLISHING AND BROADCASTING PTY LTD and TCN CHANNEL NINE PTY LTD

Second Respondents CORAM: Burchett, Miles and Ryan JJ.

There is no doubt that the first respondent defamed the appellant, who accordingly sued for damages. But this appeal is concerned with whether a defence has been established known as "innocent dissemination", and also with whether the appellant was shown to have released the respondent from liability. Each of these defences raises questions that are

The first respondent ("Channel 7") operated a television broadcasting station with a viewing audience covering the Australian Capital Territory and parts of New South Wales,

ancluding Queanbeyan. One programme telecast by it, a current

affairs programme known as the "Today Show", was produced on behalf of the second respondents ("Channel 9") in Sydney, where it was seen on the station Channel 9, being transmitted to a receiving station on Black Mountain, Canberra, and from there to Channel 7's studios for virtually simultaneous telecasting in the Australian Capital Territory. On the relevant occasion, the "Today Show" included an interview with a@ young woman identified as "Vicki", who alleged that her father had committed incest with her from the time she was seven years old, and had fathered a child to whom she had given birth when she was fourteen. We should add that it is not now suggested these allegations were true. Nor in fact did Vicki give birth to a child when she was fourteen. Although the appellant is not actually Vicki's father, he was living in Queanbeyan with her mother and their family, as husband and wife, and the learned Judge who heard the matter has held, on the plainest evidence, that people who knew the appellant and his family would have taken the allegations to

Having regard to what is required to be shown in order to make out a defence of innocent dissemination, a matter to which we shall shortly come, it 1s important to note that the allegations made by Vicki were not the spontaneous and unforeseen remarks of a person appearing on a live telecast, injected suddenly into an interview dealing with some other topic. The terms of the discussion which took place on the

programme, and the part played by the interviewer, make it

quite clear that those responsible had prior notice of what the young woman Vicki would say. Indeed the interviewer did not refrain from putting the story about the birth of the child into her mouth. It is therefore apparent that the extremely damaging nature of what was to be said was known in advance. And if that was known in advance, the possibility that the story was false must also have been appreciated. Its source was a self-acknowledged prostitute and drug addict. The publication of such a story cannot be regarded as made with that confidence of freedom from any taint of defamation

which the Court of Appeal in Weldon _v. "The Times" Book

Company (Limited) (1912) 28 TLR 143 was willing to attribute to the publication of statements made in scholarly (and presumably objective) studies of certain celebrated musicians

But although these comments plainly apply to the producer of the programme, Channel 7 claims that, for its part, it was entirely innocent of any knowledge that the programme was or might be defamatory of anyone. It received the transmission under an agreement containing no particular terms about its content; and the arrangements made for the telecast in the Australian Capital Territory did not provide any opportunity for Channel 7 to monitor independently the statements made by

The law concerning the defence of innocent dissemination

1s stated in Gatley on Libel and Slander ("Gatley"), 8th ed. (1981), para. 241, as follows:

"But the liability is somewhat different in the case of a person who is not the author, printer, or the 'first or main publisher of a work which contains a libel,' but has only taken 'a subordinate part in disseminating it,' e.g. by selling, distributing or handing to another a copy of the newspaper or book in which it appears. Such a person will not be liable if he succeeds in showing -

(1) that he did not know that the book or paper contained the libel complained of; and

(ii) that he did not know that the book or paper was of a character likely to contain a libel; and

(iai) that such want of knowledge was not due to any negligence on his part."

This defence is generally regarded as having originated in the decision of the Court of Appeal in Emmens v. Pottle (1885) 16

QBD 354, It seems to us there are at least two strands to the

reasoning in Emmens v. Pottle and the cases whi have followed it. One strand relies on the limited nature of the

defendant's involvement in the publication; he was not responsible for the insertion of the libellous material in the book or newspaper, nor for its injection into the stream of commerce in articles of that kind. This, however, even when combined with innocence of knowledge of the libel, would not be sufficient in itself to excuse him. But, in addition, the bookseller or newsagent may be able to show no negligence on his part was involved in his assumption that the articles in

which he dealt were such as it was proper for him to sell. In

seeking to show. that, he is assisted, as a factual consideration tending against any reasonable requirement of precautions on his part, by his lack of involvement in the original production of the libel. Thus the two strands of the principle are twisted together. In Emmens v. Pottle itself, Bowen L.J. said, in words which Cozens-Hardy M.R. repeated in

"The jury have found as a fact that the defendants were innocent carriers of that which they did not know contained libellous matter, and which they had no reason to suppose was likely to contain libellous matter. A newspaper is not like a fire; a man may carry it about without being bound to suppose that it is likely to do an injury. It seems to me that the defendants are no more liable than any other innocent carrier of an article which he has no reason to suppose likely to be dangerous. But I by no means intend to say that the vendor of a newspaper will not be responsible for a libel contained in it if he knows, or ought to know, that the paper is one which is likely to contain a libel."

That the defence is limited to persons fulfilling a subordinate role is made clear by the decision on the closely analogous question of publication of a contempt of court in McLeod v. St. Aubyn [1899] AC 549. There, the Privy Council (Lord Watson, Lord Macnaghten, Lord Morris and Lord Davey), in

"He was not the printer or publisher of the newspaper. He was a mere agent and correspondent of it at St. Vincent. eee It would be extraordinary if every person who innocently handed over a newspaper or lent one to a friend, with no knowledge of its containing anything objectionable, could be thereby constructively but necessarily guilty of a contempt of a Court because the said newspaper

happened to contain scandalous matter reflecting on the Court. -.». A pranter and publisher intends to publish, and so intending cannot plead as a justification that he did not know the contents.

The appellant in this case never intended to publish. "

Cf. Regina v. Griffiths. Ex parte Attorney-General [1957] 2 QB

192 at 204-205; there the respondents' role was not seen as

The same point was made by Romer L.J. in the Court of

Appeal decision Vazetelly v. Mudie's Select Library, Limited

"The result of the cases is I think that, as regards a person who is not the printer or the first or main publisher of a work which contains a libel, but has only taken, what I may call, a subordinate part in disseminating it, in considering whether there has been publication of ait by him, the particular circumstances under which he disseminated the work must be considered. If he did it in the ordinary way of his business, the nature of the business and the way in which it was conducted must be looked at; and, if he succeeds in shewing (1.) that he was innocent of any knowledge of the libel contained in the work disseminated by him, (2.) that there was nothing in the work or the circumstances under which 1t came to him or was disseminated by him which ought to have led him to suppose that it contained a libel, and (3.) that, when the work was disseminated by him, it was not by any negligence on his part that he did not know that it contained the libel, then, although the dissemination of the work by him was prima facie publication of it, he may nevertheless, on proof of the before-mentioned facts, be held not to have published it. But the onus of proving such facts lies on him, and the question of publication or non-publication is in such a case one for the jury."

The sense in which it must be shown that the defendant

was not negligent in not knowing of the libel is well

illustrated by Sun Life Assurance Company of Canada _v. W.H. Smith and Son Limited (1933) 150 LT 211, another decision of

the Court of Appeal. The case was concerned with the exhibition by newsagents of a poster supplied to them by the publishers of a newspaper to promote the sales of their paper. The newsagents received the papers and posters at their head office, where they did not have time to examine them, and sent

them out to various bookstalls. Scrutton L.J. said (at 213):

"But there appears to me to be in the system of Messrs W.H. Smith and Son Limited no efficient supervision of what they exhibit at their bookstalls for payment as in the case of exhibition under the contract which I have read. It is obvious ... that, if it is a question for the jury whether a business carried on in this way is carried on negligently, there was evidence upon which the jury could answer the fourth question as they did, 'Was there any negligence on the part of the defendants in not knowing that the poster or the newspaper contained a libel?' The jury may very well have thought: 'It is true that you are not able in the rush of business at your head office to look at every newspaper and every poster, but when you send the posters to your responsible manager of a bookstall to paste up, if you cannot look at them yourself, it is obvious that you ought to give him ainstructions that if, on looking at the poster he is suspicious of the subject-matter which you have not seen, he should at least at once communicate with you and not exhibit the poster until he has received your answer.'"

"The effect of the evidence is this, that by the system they have adopted, Messrs W.H. Smith and Son

Limited have made it next to impossible that they should exercise any care whatever in seeing whether posters they put up for reward for themselves

contain defamatory statements against some other person. It seems to me to be a course of conduct that may be regarded as negligent, because 'negligence' imports the neglect of a duty towards someone, and surely the people who issue and put up posters owe some duty to the public, to the people who read them, to the people about whom they are written. It is not sufficient for the defendants to say that it is inconvenient for them and difficult for them, having regard to their large business, to make any other arrangements than the arrangements which they have in fact made. If those arrangements result in a breach of the duty to exercise reasonable care towards persons who may be damaged by defamatory statements, then there is negligence within the rules which have been laid down with reference to the question of innocent dissemination."

Apart from the dissenting judgment of Lord Denning in

Goldsmith v. Sperrings Ltd [1977] 1 WLR 478, which (as Scarman

L.J. pointed out at 500) is not only contrary,to the views of the majority but contrary also to the leading textbook in the area, Gatley, and to the concession of the parties in that case, it has always been accepted that the onus of establishing the defence of innocent dissemination 1s upon the defendant. In Jensen _v. Clark (1982) 2 N&ZLR 268 at 275

'disseminator' to show that he was not aware of any circumstance which would put him on his guard or lead him to suspect that the material might be defamatory or, if he was aware of any such circumstance, that he took care to ensure that the material was not defamatory before disseminating it. In Goldsmith v. Sperrings Ltd [1977] 2 All ER 566, 572, Lord Denning put it on the basis of 'knew or ought to have known' and expressed the view that the onus of proof was on the plaintiff. However, that was a dissenting judgment and seems to be unsupported by any other decision."

Prichard J. asserted the law was accurately stated by Bowen L.J. in the passage we have quoted from his judgment in Emmens v. Pottie (supra). In so holding, he was following in the footsteps of Cozens-Hardy M.R. in Weldon (ubi supra) and

Scrutton L.J. in Sun Life Assurance Company of Canada (supra at 214), who said:

"In my view the safest course for the trial judge ... is to follow Bowen L.J., who 18 a very good man to follow."

The defence of innocent dissemination has not previously been thought available to a television company broadcasting material which 1t did not produce. The point is mentioned in Winfield and Jolowicz on Tort 13th ed. (1989) at 319, where it is stated in a footnote that the Faulks Committee (Cmnd. 5909 (1975)) "recommended no change in the law" (i.e. in the rule that the defence was not available to a broadcasting company). The same position seems to obtain in South Africa: J.M.

Burchell, The Law of Defamation in South Africa (1985) 177.

In the American Second Restatement, Torts (1976), it is

"(1) Except as stated in subsection (2), one who only delivers or transmits defamatory matter published by a third person is subject to liability if, but only if, he knows or has reason to know of its defamatory character.

(2) One who broadcasts defamatory matter by means of radio or television is subject to the same liability as an original publisher."

In the commentary on this section, there is an elaboration of

the position of radio and television broadcasting companies:

"For their own business purposes they initiate, select and put upon the air their own programs; or by contract they permit others to make use of their facilities to do so, and they cooperate actively in the publication. Their activity is similar to that of a newspaper, which employs its own reporters or writers to prepare matter to be published, or by contract agrees to publish matter, such as advertisements, prepared and controlled by others.

The broadcasting company is therefore not to be regarded as engaged solely in the transmission of messages. As in the case of a newspaper, it is an

original and primary publisher and is not subject to the exceptional rule stated in Subsection (1)."

In our opinion, a television company broadcasting a programme in its area - a programme which may never have been published in that area otherwise - although it may have been received from a different company that had produced it, is a world away from the subordinate distributor to whom Gatley says the defence of innocent dissemination may be available. On the contrary, the television company is an original publisher of the particular broadcast beamed from its station into the area covered by its broadcasts. If an analogy to a newsagent or bookshop were to be sought in the electronic field, a shop selling or letting on hire video cassette recordings would be an obvious suggestion. To the television station, the words of Lord Morris in McLeod v. St. Aubyn, which we have earlier quoted, must apply: as a "publisher [it] intends to publish, and so intending cannot plead as a

justification that [it] did not know the contents". That

seems to us to be the position on the existing authorities. But if the question is to be considered from the standpoint of the policy that should be adopted by the law, it is also relevant to point out that both the report of the Faulks Committee in England and the Second Restatement in America have come down firmly in favour of the continued application of the accepted principle. Although it does not apply in the present case having regard to the financial substance of Channel 9, there also militates against the extension of the defence of innocent dissemination to relayed television transmissions the possibility that the originator of defamatory material might be insolvent or, as an overseas entity, could not be sued readily or at all in the courts of this country. In those circumstances, there seems to be no reason in policy why the defence should be available to deny the victim a remedy against a solvent and available defendant which has derived whatever benefit 1t perceived from

We would accordingly hold that the defence 1s not available to the respondent. However, if it were available, in our opinion it has not been made out in the present case, The defendant did not prove that exercise of due care which it was required to show. Indeed, it proved that the contract under which it received the programme for telecasting contained no term whatever requiring due care to be exercised, either generally, or with particular regard to the risk of

defaming someone in the viewing area. The reality is that

those who produced the programme were aware in advance of the nature of what would be said on it; and if Channel 7 was content to accept the producer as its agent in respect of the consideration of the propriety of televising the material, and the producer took no care, we do not see why Channel 7 should escape the consequences of the producer's knowledge. At any rate, it took no precautions of any kind, knowing the programme was a current affairs programme, a programme which by its nature would be likely to involve comments about

It was said that there was no opportunity to monitor the content of the programme between its receipt at the Black Mountain receiver and the telecasting of it by Channel 7. If that were inevitably so, it would underline the need to require precautions to be taken in connection with the making of the programme. But nothing at all was proved to show that there was anything inevitable about it. The proof offered went no further than that things were done in that way. Whether it was feasible to monitor the programme for possibly defamatory statements was simply not explored in evidence. If the defence had otherwise been available, 1t seems to us that it would have failed for the same reason that it failed in Sun Life Assurance Company of Canada (supra) - that the company had not shown that its arrangements had involved the exercise of reasonable care towards persons who might be damaged by defamatory statements, to put the matter in the terms chosen

Having reached this conclusion, 1t is necessary for us to turn to the alternative defence of release. Before the hearing of his claim against Channel 7, the appellant had sued the television company responsible for broadcasts on Channel 9 in Sydney, where the same programme had been telecast, and had settled his claim against that company for $50,000. The settlement was embodied in a deed of release made 23 August 1985. The deed recited the Channel 9 broadcast, and the

(1) a release of Channel 9 from all actions against it arising out of Channel 9's broadcast;

(2) a release of Channel 9 from all actions against it "arising out of any other publication of the matter complained of by or on behalf of [Channel 9] its servants agents and related companies"; and

(3) a release of Channel 9 (there is a typing error in the deed, but Channel 9 is clearly meant) and related companies from all actions "arising out of or in respect to the publication or broadcast of any part of the matter complained of over television station TCN 9 Sydney or over any other radio or television station or by any other means whatsoever or in respect of or arising out of any other publication whatsoever by or on behalf of [Channel 9 and] its related companies". (Emphasis

The learned trial Judge construed this deed as involving a release of Channel 7, not as a consequence of any doctrine of the law operating in respect of a joint tortfeasor, but as a matter of construction of its terms. With respect, we cannot so understand the deed. It seems to us quite expressly to have released Channel 9 and its related companies - but Channel 7 was not a related company of Channel 9 - in respect both of the telecast sued upon in New South Wales, and also of

The appeal was argued on the footing that the programme as televised in the Australian Capital Territory plainly involved a publication by Channel 9. It was Channel 9 which transmitted the programme to Black Mountain to be received by Channel 7. When Channel 7 then telecast the programme, Channel 9 and Channel 7 were joint tortfeasors, each of whom was responsible for the publication of the libel in the Australian Capital Territory. On this basis, although the deed was not expressed as a release of Channel 7, at common law it would have had that effect. This is because of the principle that a release of one joint tortfeasor operates as a release of all: Duck v. Mayeu [1892] 2 QB 511 at 513; Cutler v. McPhail [1962] 2 QB 292; Ramsay v. Pigrim (1968) 118 CLR 271 at 286, 288, per Taylor J. (with whom Kitto J. agreed), and at 290, per Windeyer J.; J F and B E Palmer Pty Ltd v. Blowers and Lowe Pty Ltd (1987) 16 FCR 89; and see Glanville

Williams on Joint Torts and Contributory Negligence (1951)

However, the appellant argued that a by-product of the

enactment of s. 11 of the Law. Reform (Miscellaneous Provisions) Act 1955 (ACT), subss. 1, 2 and 3 of which reflect

with only minuscule alterations the provisions of s. 5(1)(a)

and (b) of the Law Reform (Miscellaneous Provisions) Act 1946

(NSW), was to abolish the common law rule. Accordingly, it is necessary to set out the relevant parts of those subsections of s. 11, to which, for reasons that will become apparent, we

"11. (1) This section applies where damage is suffered by a person as a result of a tort (whether a crime or not).

(2) Judgment recovered against a tort-feasor [sic] liable in respect of the damage is not a bar to an action against any other person who would, if sued, have been liable as a joint tort-feasor in respect of the same damage.

(3) If more than one action is brought in respect of the damage by or on behalf of the person by whom it was suffered ... against tort-feasors liable in respect of the damage (whether as joint tort-feasors or otherwise) -

(a) the sums recoverable under the judgments given in those actions by way of damages do not in the aggregate exceed the amount of the damages awarded by the judgment first given; and

(b) in any of those actions other than that in which judgment is first given, the plaintiff 1s not entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action.

(4) <A tort-feasor liable in respect of the damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort- feasor or otherwise, but no person 1s entitled to recover contribution under this section from a person entitled to be indemnified by him or her in

respect of the liability in respect of which the contribution is sought."

The first thing to notice about s. 11 is that it 1s not at all concerned with any question of the effect of a release. The relevant subsections are concerned with the rule which barred a plaintiff who had recovered judgment against one joint tortfeasor from then suing another; and with establishing rules in respect of the recovery of damages by the bringing of successive actions. It is not, therefore, surprising that Professor Glanville Williams, who wrote after the enactment in the United Kingdom of provisions to the same effect, was not troubled by any thought that they had actually changed the law of release, which he considered might well be changed. Nor for many years was any such suggestion made by anyone. It was not, for instance, made by Salmon J. (as Lord Salmon then was) in Cutler v. McPhail [1962] 2 QB 292. And ain Bryanston Finance Ltd v. de Vries [1975] QB 703 at 732 Lord Diplock said of the corresponding provisions in the United

Kingdom, which are to be found in s. 6 of the Law Reform

"The technical common law doctrine of 'release' is unaffected by the Act. Such an agreement still has the effect in law of releasing all other joint tortfeasors as well, though courts nowadays are reluctant to construe an agreement with one tortfeasor as a release rather than a covenant not to sue him, unless it is plain that the agreement was intended by the plaintiff to operate also as a release of the other joint tortfeasors from their

He continued in the next paragraph of his judgment to point out that the same section "does have the result of abolishing in its entirety (emphasis added) the technical common law doctrine of merger of the cause of action against all joint tortfeasors in the farst judgment recovered against any one of

Immediately before the giving of the decision in Bryanston Finance, the Privy Council had decided, in an advice

delivered by Lord Salmon, the appeal in Wah Tat Bank Ltd v.

Chan Cheng Kum (1975] AC 507. There, it had been argued that the statutory reform permitting successive actions against joint tortfeasors did not permit the entry of successive judgments in a single action in which more than one joint tortfeasor had been joined. The Privy Council emphatically rejected this artificial proposition. In the course of his

"According to the common law rule, anyone who suffered damage by reason of a tort jointly committed by a number of persons was deemed to have but one cause of action which merged in the first judgment which he might recover in respect of at... . Once he recovered final judgment against any tortfeasor, his cause of action in respect of that tort disappeared. He was accordingly barred from subsequently recovering judgment against any other joint tortfeasor responsible for that tort whether in an action commenced before, at the same time as,

or after the action in which a final judgment had already been recovered."

After discussing this rule at some length, he concluded (at

517), of a section relevantly in the same terms as s. 11,

"their Lordships consider that it expresses with reasonable clarity the intention of the legislature to abolish the common

In XL Petroleum (N.S.W.) Proprietary Limited v. Caltex Qil (Australia) Proprietary Limited (1985) 155 CLR 448 at 458,

Gibbs C.J. stated his agreement with the view of the Privy Council and of Lord Diplock. The question in XL Petroleum was whether, separate actions being now permissible, verdicts in differing amounts could be obtained on the basis that a particular tortfeasor was liable to pay exemplary damages.

"Once it 1s accepted that more than one judgment may be given against joint tortfeasors for damages caused by a joint tort, whether damages are given in the same or in different proceedings, there can remain no foundation for the rule that only one sum can be awarded by the different judgments. The reason for the rule was that there was only one cause of action against the joint tortfeasors, but that is no longer the position - the statute has abolished, 'in its entirety' the old common law principle that a person who suffers damage by a joint tort has only one cause of action which merges in the first judgment recovered in respect of it. Surely the statutory provision was not intended to abolish only the doctrine of merger, for it was not primarily directed to the question of merger, and there is no reason for selecting one aspect of the principle rather than another as that which it was intended to affect; the whole principle should be held to have gone. It seems to me impossible now to hold that there is any principle that would prevent a plaintiff from recovering different sums from different tortfeasors if he brings separate actions against them, provided that some are liable for exemplary damages and others are not, and the same must be true if the joint tortfeasors are all sued in one action."

Wilson J. agreed with the Chief Justice, and Brennan J. (in a

It is the proposition that the old law has been done away with "in its entirety" upon which the argument in the present case fastened. Counsel said that the effect given to a release at common law was also a consequence of the same rule, and that it, too, had gone. But it 1s plain that Gibbs C.J., when he put the words "in its entirety" in inverted commas, was referring to the use of those expressions by Lord Salmon

and Lord Diplock, to whose advice and judgment he had

referred. They were not talking about the doctrine of release, as Lord Diplock had made expressly clear. Nor was Gibbs C.J. The entire rule to which they and he were

referring was the rule concerning the bringing of actions against joint tortfeasors in order to recover verdicts against them, and the limitation placed upon the amount of a verdict as a corollary of the rule. The nature of a joint liability, as distinct from particular essentially procedural problems which beset the enforcement of it, was neither dealt with in the Law Reform provision nor under examination by Gibbs C.J., Lord Diplock or Lord Salmon. Cf. Barisic v. Devenport [1978] 2 NSWLR 111.

Just as Lord Diplock's express reference to the subject of release makes it plain that the entire rule which he thought had gone did not involve in its passing the doctrine

of release, so Gibbs C.J. also made it plain that he was not

dealing with the question of release. In his judgment (at 456), he referred to Duck v. Mayeu (supra), without any hint of disapproval, and apparently accepting it; and (at 459) he

"In Bryanston Finance Ltd v. de Vries Lord Diplock said that an agreement to release one joint

tortfeasor still releases the others; it may be thought that this implies that the rule that the victim of a tort committed by joint tortfeasors has only one cause of action still applies, but the question that now falls for decision was not

This is to take the dictum of Lord Diplock as a brick upon which more might have been built, although Gibbs C.J., of course, used another foundation for the conclusion he actually reached. But what is clear for present purposes is that he

Indeed, it is not to be thought that, if Gibbs C.J. had intended to reject what Lord Diplock had said, he would have failed even to mention the acceptance by Kitto, Taylor and Windeyer JJ., in Ramsay v. Pigram (ubi cit. supra), of the authority of Duck v. Mayeu. Nor could that acceptance have been ignored on the ground that they did not have their attention directed to the possibility of some impact of the

very law reform provisions now relied on, for Taylor J. cited

Apley Estates Company Limited v. De Bernales [1947] Ch. 217,

where Somervell L.J. (at 222) referred to that possibility.

"Likewise, although the liability of joint tortfeasors is said to be joint and several in the sense that a plaintiff may, without objection sue one or more of them, it has consistently been held that the release of one of several joint tortfeasors operates to release all: Duck v. Mayeu [1892] 2 Q.B. 511, and Apley Estates Co. Ltd. v. De Bernales

{1947] 1 Ch. 217. In the former case A. L. Smith L.J. speaking for the Court of Appeal said:

'It is, we think, clear law, that a release granted to one joint tortfeasor, or to one joint debtor, operates as a discharge of the other joint tortfeasor, or the other joint debtor, the reason being that the cause of action, which is one and indivisible, having been released, all persons otherwise liable thereto are consequently released. The case of Cocke v. Jennor (1614) Hob. 66 [80 E.R. 214] is distinct upon the point, and there are many subsequent cases to the same effect.'

This passage was cited by the Court of Appeal with approval in Apley Estates Co. Ltd. v. De Bernales

[1947] 1 Ch. 217 and as far as I can see has never been questioned."

Leading textbooks have accepted that the law is as stated

in Duck v. Mayeu: Salmond and Heuston on the Law of Torts 19th

ed. (1987) 498; Winfield and Jolowicz on Tort 13th ed. (1989)

592; Gatley on Libel and Slander, 8th ed. (1981), paras. 864

and 865; Fridman on the Law of Torts in Canada (1990) vol. 2

Fridman cites the Canadian case Dixon v. The Queen in

Right of British Columbia (1979) 99 DLR (3d) 652, where (at 660-662) Ruttan J. referred to Halsbury (3rd ed.) vol. 37

para. 246 and to a number of decisions in support of the continued application of Duck v. Mayeu. When the matter went on appeal to the British Columbia Court of Appeal, Taggart J.A., who delivered the judgment of the Court, said (Dixon v.

The Queen in Right of British Columbia (1980) 128 DLR (3d) 389 at 403):

"If the settlement had taken the form of a settlement based in part upon a release by the plaintiffs of any liability on the part of the Ferry Authority and, if the acts causing the injuries to Mr Dixon had been those of the Ferry Authority and Hydro as

joint tortfeasors, then the release of one joint tortfeasor would effect a release of the other."

In Australia, the second edition of Trindade and Cane: The Law of Torts in Australia (1993) at 729 states that "the rule that a release discharges all the tortfeasors still survives, although courts today might be unwilling to interpret a

document as a release rather than a covenant not to sue."

It was after the decision of the High Court in XL Petroleum that Burchett J. decided J F_& B E Palmer Pty Ltd v.

Blowers and Lowe Pty Ltd (supra). Burchett J. followed the authority of Duck v. Mayeu and the view of Lord Diplock, which

his Honour understood to have been accepted by Gibbs C.J.

Subsequently, this decision was cited by Sweeney J. in

Perrosax Pty Ltd v. Jusco Pty Ltd (unreported, 8 December

1989), where his Honour's judgment shows that he had reached the same conclusion independently. Very shortly after the delivery of judgment by the High Court in XL Petroleum, Finlay J., sitting in the common law division of the Supreme Court of New South Wales, had also accepted that "the agreement to release one joint tortfeasor still releases the other": Delic

Against these authorities may be set the doubt expressed

by Professor Fleming in his Law _of Torts 8th ed. (1992) at

259, where he referred to the rule that the release of one

joint tortfeasor discharges all, citing Cutler v. McPhail and

JF & BE Palmer Pty Ltd v. Blowers & Lowe Pty Ltd, and then

added: "This rule has not been abrogated expressly except in Tasmania; but it may have been implicitly: by authorising successive actions, the unity of the common law action against all tortfeasors may have been severed in its entirety." This

passage was referred to in the judgment of Beazley J. in State

of New South Wales v. McCloy Hutcherson Pty Ltd (1993) 43 FCR

489, where (at 498) the conclusion was expressed, as an obiter

"I consider that there is much force in the proposition that the rule, that a release of one joint tortfeasor operates in favour of all joint tortfeasors, did not survive the enactment of s 5(1) of the Law Reform (Miscellaneous Provision) Act. Although Gibbs C.J. in XL Petroleum referred uncritically to the comments of Lord Diplock in Bryanston Finance, his Honour's observation was obiter, and the matter was not the subject of detailed consideration. It is illogical that certain aspects of a rule are abrogated by a statute because the statute does away with the foundation upon which the rule is based, while other aspects of the rule remain, however this is the result of holding that the rule as to the release of joint tortfeasors survived the enactment of s 5. Were 1t necessary to decide the point I would find that the rule as to release has also been abrogated by s 5."

Quite apart from the difficulty of regarding the point, to which Somervell L.J. had referred as long ago as 1947, as having escaped notice because not the subject of detailed consideration, and apart from the weight of the authorities to which we have referred, there seem to us with respect to he

some difficulties ain adopting this approach. Statutory

24, reforms removing a particular plank from the edifice of the common law do not necessarily bring down whole sections of the structure just because a rule expressly changed or abolished had an historical or a logical connection with other rules of the common law. To forbid such a consequence the rule has been established (and should be adhered to: Corporate Affairs Commission of New South Wales _v. Yuill (1991) 172 CLR 319 at 322, per Brennan J.) that Acts altering the common law should be construed as doing so only so far as is necessary to give

effect to their provisions: Hocking v. Western Australian Bank

(1909) 9 CLR 738 at 746; American Dair ueen. rid Proprietary Limited v. Blue Rio Proprietary Limited (1981) 147 CLR 677 at 682-683, per Mason J., with whom Gibbs C.J., Murphy, Aickin and Brennan JJ. agreed; Pearce and Geddes on

Statutory Interpretation in Australia, 3rd ed. (1988), 104-

105; or as Lord Reid put it in Black-Clawson International Ltd

v. Papierwerke Waldhof-Aschaffenburg [1975] AC 591 at 614, "in

the absence of any clear indication to the contrary Parliament can be presumed not to have altered the common law further than was necessary to remedy the 'mischief.'" And where would the process stop? The rule in Duck v. Mayeu has itself linkages with the rule that a release by accord and Satisfaction of one covenantor operates as a release of all other covenantors undertaking the same obligation: see Deanplan Ltd v. Mahmoud [1993} Ch. 151. Indeed, the rule as stated in Duck v. Mayeu by A.L. Smith L.J. (see also Halsbury's statement of it in the paragraph cited earlier) was

not confined to a release of one joint tortfeasor, but was a

wider rule about the effect of a release upon a joint

Coming nearer to home, the present case provides an example of the kind of problem that may arise from too ready an acceptance that a reform plainly directed to a different issue may, almost by accident, have affected a settled rule. The very provision in s. 11 of the Law Reform (Miscellaneous Provisions) Act 1955 (ACT), which we have set out above, contains, in subs. 4, provision for recovery of contribution by one joint tortfeasor from another. Had Parliament deliberately set out to amend the law in respect of the effect of a release of a joint tortfeasor who settles a claim, some thought might have been expected to have been given to the

interrelationship between that reform and the reform embodied

in subs. 4. Appropriate safeguards might have been inserted into the provisions of the statute. But if the earlier subsections of s. 11 are simply strained by judicial

interpretation to cover a subject to which no attention was directed by the legislature, any difficulties thus created will not have been overcome by the enactment, but must simply be endured. When the appellant brought his action against Channel 7, it cross-claimed against Channel 9, seeking contribution in respect of any verdict which might be obtained by the appellant. One must ask whether it 1s consonant with justice that a joint tortfeasor who has made an agreed payment in settlement of his liability, and taken a release in respect

of it, should then be liable to such a claim for contribution

in respect of part of the very same damage sustained by the injured party. The release given by Mr Thompson was clearly intended to cover all publications of this defamation for

which Channel 9 bore responsibility, and the amount paid was

By the rule in Duck v. Mayeu, plaintiffs who have given releases in relation to claims against joint tortfeasors have for at least the last one hundred years known (unless they were negligently advised) the effect of what they were doing, and joint tortfeasors who took such releases upon entering unto settlements have known where they stood. The amounts of

settlements have been determined accordingly. But if the

dictum in State of New South Wales v. McCloy Hutcherson Pty

Ltd is accepted, there can never be certainty about the effect of such a release because claims for contribution may always turn out to be made by joint tortfeasors subsequently sued. Of course, an alert releasee (once the supposed new rule becomes known) may seek some further protection than the normal release, but it was the necessity to take special technical steps, and the undesirability of complications of this kind, which formed the basis of Professor Fleming's

In making these comments about the practical effects of a decision abolishing the rule in Duck v. Mayeu, we have not overlooked the possibility that a released joint tortfeasor,

against whom a claim for contribution is subsequently made,

might seek to rely on the release to support an argument that he is not an "other tortfeasor who is, or would if sued have been, liable in respect of the same damage" within s. 11(4), for the very reason that he has been released. But we do not think any contention to this effect could succeed. Quite soon after the enactment of provisions such as that contained in s. 11(4), the question was raised whether a joint tortfeasor, against whom a claim for contribution was made, could rely on a ground of defence which would have defeated a claim made by

the injured person against that joint tortfeasor, if made at

the time the claim for contribution arose. One of the early decisions is Nickels v. Parks (1948) 49 SR(NSW) 124. Jordan

At a glance

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Cases Cited (17)

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