Thompson v Australian Capital Television Pty Ltd

High Court of Australia|1996-12-10|Before: Brennan CJ, Gummow JJ, Toohey JJ, Gallop J

High Court of Australia Brennan CJ Dawson, Toohey, Gaudron and Gummow JJ Thompson v Australian Capital Television Pty Ltd [1996] HCA 38

Set aside the orders of the Full Court of the Federal Court of Australia and in lieu thereof order:

(b) Set aside the orders of the Supreme Court of the Australian Capital Territory and in lieu thereof order that the matter be remitted to that Court for the assessment of damages to be recovered by the appellant and for the hearing of any related third party claim with costs to be reconsidered in accordance with the judgment of this Court.

The respondents pay the appellant's costs in this Court.

10 December 1996 Brennan CJ, Dawson and Toohey JJ.

The first respondent (Channel 7) operated a television station in the Australian Capital Territory. On 21 February 1984, it broadcast a program entitled "The Today Show". The program was produced live by the second-named second respondent (Channel 9) from its studios in Sydney. Pursuant to a licence agreement between Channel 7 and the first-named second respondent (PBL), a related corporation of Channel 9, the program was received by a microwave link at the transmitting site of Channel 7 on Black Mountain in the Australian Capital Territory. From there the program was relayed to the studios of Channel 7 at Watson in the Australian Capital Territory, whence it was broadcast throughout the Australian Capital Territory and to adjoining areas of New South Wales.

The program included a live interview with a young woman identified as "Vicki", during which it was alleged that her father (which was held to be a reference to the appellant, who is in fact her step-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. Nothing has emerged at any stage to suggest that there is any truth in these allegations. The appellant sued Channel 7 in the Supreme Court of the Australian Capital Territory seeking damages for defamation. Channel 7 sought contribution or indemnity from Channel 9 and PBL in third party proceedings.

Whilst the trial judge, Gallop J, found that Channel 7 had defamed the appellant, he dismissed the claim against it on the basis that it had made out the defence of innocent dissemination. He also held that the appellant had, in any event, released Channel 7 from liability pursuant to a deed executed between the appellant and Channel 9. Without admission of liability, and for a consideration of $50,000, the deed released Channel 9 from liability in respect of the program. Gallop J took the view that, on its proper construction, the deed released Channel 7 as well.

The appellant appealed to the Full Court of the Federal Court [1] . That Court differed from Gallop J, holding that the defence of innocent dissemination was not available to Channel 7 and rejecting Gallop J's finding that the deed between the appellant and Channel 9, on its proper construction, released Channel 7. However, the appeal was dismissed because it was held that the deed had the effect of releasing Channel 7 from liability on the basis that Channel 7 and Channel 9 were joint tortfeasors, the release of one being effective to release the other. The appellant now appeals by special leave to this Court.

Thompson v Australian Capital Television Pty Ltd (1994) 54 FCR 513

The appeal involves three issues. The first is whether Channel 7 and Channel 9 were joint tortfeasors. If they were, the second issue is whether the release of Channel 9 from liability had the effect of releasing Channel 7 as well. If Channel 7 was not released, the third issue (which arises by way of notices of contention filed by the respondents) is whether Channel 7 may rely upon the defence of innocent dissemination.

We have no doubt that Channel 9 and Channel 7 were joint tortfeasors. The difference between joint tortfeasors and several tortfeasors is that the former are responsible for the same tort whereas the latter are responsible only for the same damage [2] . As was said in The "Koursk" [3] , for there to be joint tortfeasors "there must be a concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage". Principal and agent may be joint tortfeasors where the agent commits a tort on behalf of the principal, as master and servant may be where the servant commits a tort in the course of employment. Persons who breach a joint duty may also be joint tortfeasors. Otherwise, to constitute joint tortfeasors two or more persons must act in concert in committing the tort. Torts of all kinds may be joint and defamation is no exception. The transmission of the television program in question was the result of concerted action on the part of Channel 9 and Channel 7 and that made them joint tortfeasors. In the same way, the journalist, printer, publisher and distributor are joint tortfeasors in respect of the ultimate publication of a libellous periodical or book [4] . In the present case, PBL had licensed Channel 7 to transmit the program in question. The relevant licence agreement established the common design, namely, the transmission of the program by Channel 7 to the Australian Capital Territory and adjoining areas in pursuit of commercial gain. Whilst Channel 7 had the right not to broadcast any particular program or part of a program, where a program was in fact broadcast it was because Channel 9 and Channel 7 acted together - in concert - to achieve a common end [5] .

Fleming, Law of Torts, 8th ed (1992), p 255. 2. [1924] P 140 at 159-160. 3. See Glanville Williams, Joint Torts and Contributory Negligence (1951), pp 10-11 and the cases there cited; Cutler v McPhail [1962] 2 QB 292 4. The "Koursk" [1924] P 140 at 156; cf CBS Songs Ltd v Amstrad Plc [1988] AC 1013 at 1056-1057

At common law, where there was a joint tort there could be only one action and one judgment for the whole amount of damages to which the plaintiff was entitled. That is to say, the cause of action was one and indivisible so that when judgment was obtained on it, whether against one or more of the joint tortfeasors, the cause of action merged in the judgment and precluded further recovery against any remaining tortfeasors. That was the basis of the rule in Brinsmead v Harrison [6] that a judgment obtained against one joint tortfeasor was a bar to an action against the others upon the same cause of action, even if the judgment remained unsatisfied. It was also the basis of the rule that the release of one joint tortfeasor released all the others [7] . As A L Smith LJ said in Duck v Mayeu [8] :

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 [9] is distinct upon the point, and there are many subsequent cases to the same effect. On the other hand, where there was a mere covenant not to sue one joint tortfeasor, as opposed to a release under seal or by accord and satisfaction, the covenant did not preclude recovery against the other joint tortfeasors [10] . As a consequence, courts were reluctant to construe an agreement with one tortfeasor as a release rather than a covenant not to sue [11] . 1. (1872) LR 7 CP 547. See also King v Hoare (1844) 13 M& W 494 at 504-505 [153 ER 206 at 210]; Wah Tat Bank Ltd v Chan [1975] AC 507 at 515 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 456 2. Cocke v Jennor (1614) Hob 66[80 ER 214]. 3. [1892] 2 QB 511 at 513. See also Cutler v McPhail [1962] 2 QB 292 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 456 4. (1614) Hob 66 [80 ER 214]. 5. Apley Estates Co Ltd v de Bernales [1947] Ch 217 Cutler v McPhail [1962] 2 QB 292 at 296 Gardiner v Moore [1969] 1 QB 55 at 92 6. Bryanston Finance Ltd v de Vries [1975] QB 703

The rule in Brinsmead v Harrison was abrogated in the Australian Capital Territory by s 11 of the Law Reform (Miscellaneous Provisions) Act 1955 ACT (the ACT Act). That section is the counterpart of s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 NSW (the NSW Act) which in turn mirrors s 6 of the Law Reform (Married Women and Tortfeasors) Act 1935 UK (the UK Act). Sub-section (1) of s 11 of the ACT Act provides that the section applies where damage is suffered by a person as a result of a tort (whether a crime or not) and sub-s (2) continues:

Judgment recovered against a tort-feasor 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. Sub-section (3) goes on to provide that the damages recoverable under judgments against joint tortfeasors in successive actions shall not in the aggregate exceed the damages awarded by the first judgment and sub-s (4) provides for contribution between joint tortfeasors.

The effect of s 11(2) is that the cause of action against joint tortfeasors is no longer one and indivisible. The Singaporean equivalent, s 11(1)(a) of the Civil Law Act 1970 Sing, was considered by the Privy Council in Wah Tat Bank Ltd v Chan [12] . Their Lordships rejected the conclusion which had been reached in the courts below that the provision does not apply where two or more tortfeasors are sued in the one action in respect of the same tort and that in those circumstances judgment against one still bars the right of action against the others. Although s 11(1)(a) does not in express terms apply in the case of judgment against one joint tortfeasor in a single action against that tortfeasor and another joint tortfeasor, the Privy Council saw the question as being whether the legislature had succeeded in abolishing in its entirety the common law rule that there was only one indivisible cause of action for a joint tort with the consequence that the cause of action merged in the first judgment obtained on it. They answered that question in the affirmative as follows [13] :

The English Court of Appeal considered s 6(1)(a) of the UK Act in Bryanston Finance Ltd v de Vries [14] and applied Wah Tat Bank Ltd v Chan . Lord Diplock said [15] :

So s 6(1)(a) when closely analysed does have the result of abolishing in its entirety the technical common law doctrine of merger of the cause of action against all joint tortfeasors in the first judgment recovered against any one of them. That the section should be construed in a way which would have the effect of replacing an existing technicality, for which some juristic basis could at least be found, by a new and even greater technicality devoid of any rational basis (namely, that merger should depend on whether the first judgment was obtained in the same or in a separate action), can hardly be supposed to accord with the intention of Parliament in reforming this branch of the common law. That statement would seem necessarily to accept that under the legislation a cause of action against joint tortfeasors is no longer one and indivisible. If we may say so with respect, it is with some surprise that one reads the preceding passage in the same judgment where, after an analysis of the words "any other person who would, if sued, have been liable as a joint tortfeasor in respect of the same damage", Lord Diplock said [16] : The description embraces all joint tortfeasors other than those whom the victim of the joint tort has covenanted not to sue: or has released from liability prior to judgment by entering into an agreement of release with any one of them. 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. 1. [1975] QB 703. 2. Bryanston Finance [1975] QB 703 at 732. 3. Bryanston Finance [1975] QB 703 at 732.

In XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [17] , Gibbs CJ thought that this statement (which, it must be said, is clearly obiter) suggested "that the rule that the victim of a tort committed by joint tortfeasors has only one cause of action still applies". Clearly, Gibbs CJ thought that unless that were so, there could no longer be any foundation whatsoever for the rule that the release of one joint tortfeasor releases the others. In our view Gibbs CJ was correct in that view and in his conclusion [18] that the whole principle that there is only one cause of action against joint tortfeasors should be held to have gone by reason of s 5(1) of the NSW Act. Brennan J added to that conclusion, saying [19] :

The effect of s 5(1) upon the joint and several liability of joint tortfeasors is far reaching, for the unity of the cause of action against all joint tortfeasors is severed by s 5(1)(a) and the resulting implications are not merely procedural. 1. (1985) 155 CLR 448 at 459. 2. XL Petroleum (1985) 155 CLR 448 at 459-460. 3. XL Petroleum (1985) 155 CLR 448 at 466.

Similarly, under s 11(2) of the ACT Act it is no longer the case that the victim of a tort committed by joint tortfeasors has only one cause of action; the cause of action is no longer one and indivisible. The concept of a single wrong and a single cause of action having gone, the rule that a release given by one joint tortfeasor releases any others must have gone with it, for that rule is nothing more than another aspect of the same thing, namely, that there is only one cause of action against all joint tortfeasors in respect of the one tort. In other words, once the cause of action is by statute no longer one and indivisible, there is no conceptual basis for the rule that the release of one joint tortfeasor releases the others. The rule must therefore be taken to have been impliedly abolished by the statute [20] .

See, eg, Brown v Holloway (1909) 10 CLR 89cf Edwards v Porter [1925] AC 1 Lamb v Cotogno (1987) 164 CLR 1

It is true that the draftsman of the legislation could have included, as did the draftsman of s 3(3) of the Tortfeasors and Contributory Negligence Act 1954 Tas, an express provision that the release of one joint tortfeasor does not release the other joint tortfeasors in respect of the same tort, but the absence of such a provision does not affect the necessary implication that the common law rule in relation to releases must have gone at the same time as the cause of action became no longer one and indivisible. It is also true that in Ramsay v Pigram [21] Taylor J (with whom Kitto J agreed) said, referring to Duck v Mayeu , that "it has consistently been held that the release of one of several joint tortfeasors operates to release all". But his Honour was there speaking of the common law and had not turned his mind at that point to s 5 of the NSW Act. He did so later on in his judgment and, whilst not adverting specifically to the effect of that provision upon the rule relating to the release of joint tortfeasors, correctly appreciated the effect of the section, saying [22] :

The effect of this legislative enactment is, of course, to permit successive actions to be brought against individual joint tortfeasors and the result of this must be to destroy the basis upon which it might, perhaps, have been asserted that at common law joint tortfeasors were in the same situation as privies for relevant purposes. 1. (1968) 118 CLR 271 at 286. 2. Ramsay v Pigram (1968) 118 CLR 271 at 288

It is more than one hundred years since the Court of Appeal in England in Emmens v Pottle [23] held that the vendor of a newspaper is not liable for a libel contained in the newspaper if he can prove that he did not know that it contained a libel; that his ignorance was not due to any negligence on his part; and that he did not know, and had no ground for supposing, that the newspaper was likely to contain libellous matter. The decision may have been given ex tempore; counsel for the defendant vendors were not called upon. The language, especially that of Bowen LJ, is colourful [24] :

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. His Lordship's conclusion was founded on lack of knowledge on the part of the vendors of the libellous nature of the newspaper and absence of reason to suppose that it was likely to have contained libellous matter. 1. (1885) 16 QBD 354. 2. Emmens v Pottle (1885) 16 QBD 354 at 358

Lord Esher MR rationalised rather than explained the decision by saying of the defendants [25] :

If they were liable, the result would be that every common carrier who carries a newspaper which contains a libel would be liable for it, even if the paper were one of which every man in England would say that it was not likely to contain a libel. In fairness to Lord Esher, he added: To my mind the mere statement of such a result shews that the proposition from which it flows is unreasonable and unjust. If unreasonable and unjust, the proposition could not, in his Lordship's view, be part of the common law of England. 1. Emmens (1885) 16 QBD 354 at 357

In Vizetelly v Mudie's Select Library Ltd [26] Romer LJ acknowledged that although the decision in Emmens v Pottle "worked substantial justice", it did not satisfactorily explain the departure from "well settled law that a man who publishes a libel is liable to an action, although he is really innocent in the matter, and guilty of no negligence". The judgments in Vizetelly itself hardly offer a satisfactory statement of principle. The explanation they offer is by reference to publication, the implication being that the innocent disseminator has not in truth published the libel in question. Indeed the judgment of Romer LJ goes beyond implication, for his Lordship said of the person who is not the printer or main publisher [27] :

[I]f 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 it 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 primâ facie publication of it, he may nevertheless, on proof of the before-mentioned facts, be held not to have published it. 1. [1900] 2 QB 170 at 179-180. 2. Vizetelly [1900] 2 QB 170 at 180

The plea of "never published" relied upon in Emmens v Pottle and later cases "has introduced a measure of confusion" [28] . The authors of Duncan & Neill on Defamation [29] comment:

It is submitted that it would be more accurate to say that any disseminator of a libel publishes the libel but, if he can establish the defence of innocent dissemination, he will not be responsible for that publication. 1. Gatley on Libel and Slander, 8th ed (1981), p 244, fn 3. 2. 2nd ed (1983), p 110, fn 3.

Despite its somewhat muddied origins, the defence of innocent dissemination has become well accepted in the United Kingdom [30] . In Australia Emmens v Pottle has the somewhat reluctant endorsement of the New South Wales Court of Appeal in McPhersons Ltd v Hickie [31] , although Powell JA saw no reason in logic why the defence upheld in the English case should not also be available to a printer who had no reason to know and no reason to suspect that the printed material contained or was likely to contain libellous matter. Nevertheless, in both Emmens v Pottle and Vizetelly printers were regarded as outside the ambit of the defence of innocent dissemination. The printing technology of the time made it inevitable that the printer would know the contents of what was being printed. With changes in technology, the logic of treating printers in the same way as distributors was accepted by the Faulks Committee in the United Kingdom [32] and by the Australian Law Reform Commission [33] . The logic is irresistible so long as the printer qualifies as a subordinate publisher, a concept that is discussed a little later in this judgment.

Vizetelly v Mudie's Select Library Ltd [1900] 2 QB 170 Weldon v The Times Book Co Ltd (1912) 28 TLR 143 Bottomley v F W Woolworth & Co Ltd (1932) 48 TLR 521 Sun Life Assurance Co of Canada v W H Smith & Son Ltd (1933) 150 LT 211 Goldsmith v Sperrings Ltd [1977] 1 WLR 478[1977] 2 All ER 566 2. [1995] Aust Torts Reports ¶81-348. 3. United Kingdom, Report of the Committee on Defamation, Cmnd 5909 (1975), p 83. 4. Australian Law Reform Commission, Unfair Publication: Defamation and Privacy, No 11 (1979), pp 97-100.

The technology of printing has changed dramatically since the turn of the century. And the situation presently before the Court, namely television broadcasting, is one that could hardly have been envisaged then. What principles should apply to the situation where a television program is sold by one channel (the producer) to another channel for further screening where no circumstances of agency arise?

The appellant argued that Emmens v Pottle established a "special rule governing special people" and that it had no application to the electronic media. In particular, the appellant contended that the rule protected an innocent disseminator who bought and sold the same physical object whereas Channel 7 received an electronic transmission by microwave link and effected a new and independent electronic transmission, albeit of the same program material. The correct analogy, so the argument ran, is with a printer who prints something identical to but not the same physical object as he receives. The appellant pointed to the sophisticated technology and staff available to a television station to view material before it is rebroadcast. To allow the defence to a television station in the position of Channel 7, it was said, would enable a television network to structure its affairs so that its solvent operating company is the rebroadcaster while the original publisher is an overseas or impecunious company.

These arguments found favour with Burchett and Ryan JJ in the Full Court. Their Honours concluded [34] :

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. Their Honours went on to say that if, contrary to their conclusion, the defence was available to Channel 7, it had not been made out in all the circumstances. That aspect only calls for determination if one takes a different view as to the availability of the defence. 1. Thompson v Australian Capital Television Pty Ltd (1994) 54 FCR 513 at 519

The two questions - the availability of the defence and whether it has been made out - are run together in some discussions of the matter, both in judgments and commentaries. The availability of the defence of innocent dissemination to Channel 7 depends upon it being a subordinate publisher.

The idea of subordinate publisher seems to derive from Vizetelly where Romer LJ said [35] :

The result of the cases [36] 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 it by him, the particular circumstances under which he disseminated the work must be considered. At this point in his judgment Romer LJ turns to the question of knowledge, not treating it as a separate question but rather as going to the issue of whether or not there has been a publication. The idea that an innocent subordinate disseminator does not intend to publish is echoed in such decisions as McLeod v St Aubyn [37] and Sun Life Assurance Co of Canada v W H Smith & Son Ltd [38] , though the former was concerned with contempt of court proceedings. 1. Vizetelly [1900] 2 QB 170 at 180 2. A reference to Emmens v Pottle (1885) 16 QBD 354 Ridgway v Smith & Son (1890) 6 TLR 275 Mallon v W H Smith & Son (1893) 9 TLR 621and Martin v Trustees of the British Museum (1894) 10 TLR 338 3. [1899] AC 549 at 562. 4. (1933) 150 LT 211 at 213, 215-216.

McLeod may be contrasted with R v Griffiths; Ex parte Attorney-General [39] where the distributors of the European edition of a foreign periodical in the United Kingdom were held guilty of contempt of court. This was on the footing that when foreign publications which had no responsible local editor or manager were imported into the country the responsibility for their contents must be borne by the distributors and that, in cases of contempt of court, the defence of innocent dissemination was not available to those who in the way of their trade were responsible for putting the offending matter into circulation. Faced with the decision in Emmens v Pottle , the Court of Appeal in a judgment read by Lord Goddard CJ said [40] that "[c]ases of contempt by the publication of matter tending to prejudice a fair trial stand in a class of their own and are not truly analogous to cases of defamation".

[1957] 2 QB 192. 2. R v Griffiths [1957] 2 QB 192 at 203-204

The first question - the availability of the defence - is answered by determining whether Channel 7 was, in the circumstances, a subordinate publisher. Burchett and Ryan JJ observe [41] :

The defence of innocent dissemination has not previously been thought available to a television company broadcasting material which it did not produce. The reason is, as pointed out in the commentary on the American Second Restatement, Torts [42] in relation to 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 Restatement concludes [43] : One who broadcasts defamatory matter by means of radio or television is subject to the same liability as an original publisher. 1. Thompson (1994) 54 FCR 513 at 519 2. (1976) s581, pp 234-235. 3. Second Restatement, Torts (1976) s581 at 231.

It must be recognised that the Restatement is speaking of the usual way in which television companies operate. There is no reason in principle why a mere distributor of electronic material should not be able to rely upon the defence of innocent dissemination if the circumstances so permit. In that respect we agree with Miles J in the Full Court who, agreeing with the trial judge, said [44] :

[T]here is no logical reason, in accordance with the ordinary processes of the development of the law through judicial decision, why the defence of innocent dissemination or innocent republication should be restricted to printed material and not extended to television broadcasts. 1. Thompson v Australian Capital Television Pty Ltd (1994) 54 FCR 513 at 532

The situation in the present case is that the broadcast of "The Today Show" was live to air from the studios of Channel 9 in Sydney. It was received by a microwave link at Channel 7's transmitting site on Black Mountain in the Australian Capital Territory and relayed from there by a further microwave link to the studios of Channel 7 in the Australian Capital Territory. From those studios it was broadcast to viewers in the Australian Capital Territory and nearby parts of New South Wales. It is true that Channel 7 did not participate in the production of the original material constituting the program. But Channel 7 had the ability to control and supervise the material it televised. Channel 7's answer is that time did not permit monitoring the content of the program between its receipt at Black Mountain and its telecast from the studios in the Australian Capital Territory. That may well be so but it by no means follows that Channel 7 was merely a conduit for the program and hence a subordinate disseminator. It was Channel 7's decision that the telecast should be near instantaneous, a decision which was understandable given the nature and title of the program but which was still its decision.

Without, at this point, trespassing into the second question, namely, whether the defence of innocent dissemination was made out, the nature of a live to air current affairs program carries a high risk of defamatory statements being made. In those circumstances it would be curious if Channel 7 could claim to be a subordinate disseminator because it adopted the immediacy of the program. It did that for its own purposes, that is, to telecast to viewers in the Australian Capital Territory and adjoining areas. The agreement it made with PBL did not, as we have already observed, oblige Channel 7 to broadcast the program. Pursuant to the agreement Channel 7 acquired a licence "to broadcast by television transmission only" episodes of a current affairs program, "The Today Show". It broadcast for its own purposes, not as agent for PBL or Channel 9, and it "authorised" the broadcast in any meaningful sense that term has [45] .

cf Auvil v CBS 60 Minutes (1992) 800 FSupp 928 (ED Wash) where local affiliates of CBS, which had some time period in which to review programming before it went to air and had power to exercise editorial control over broadcast under a contract with the network, were nevertheless held to be conduits and not liable in defamation. On the other hand, in Stratton Oakmont Inc v Prodigy Services Co (1995) 63 USLaw Week 2765 a computer network that held itself out as having editorial control over notes posted on its bulletin board, imposed content guidelines on its users by prescreening notes for offensive language, and permitted board leaders to delete notes that did not meet guideline requirements was held liable to be sued as "publisher" of defamatory statements posted on its bulletin board. American decisions in this area must be treated with caution because of the influence of the First Amendment, made applicable to the states through the Fourteenth Amendment: see Cubby Inc v Compuserve Inc (1991) 776 FSupp 135 (SDNY) at 139.

This conclusion makes it strictly unnecessary to determine the second question as to where the onus of proof lies in that regard. It is enough to say, as Burchett and Ryan JJ said [46] :

[Channel 7] 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 persons. However, we would cavil at their Honours' reference to Channel 7 being "content to accept the producer as its agent in respect of the consideration of the propriety of televising the material". No question of agency relevantly arises between the two television stations. 1. Thompson (1994) 54 FCR 513 at 520

For these reasons we would allow the appeal. We would make the orders proposed by Gummow J.

The facts and the issues which arise on this appeal are set out in the judgment of Gummow J. I agree with his Honour, for the reasons that he gives, that the first and second respondents ("Channel 7" and "Channel 9", respectively) are joint tortfeasors but that s 11 of the Law Reform (Miscellaneous Provisions) Act 1955 ACT operates so that "the unity of the cause of action against all joint tortfeasors is severed" [47] . The consequence is, as his Honour indicates, that the release of Channel 9 does not operate to release Channel 7 from liability for broadcasting the program which was defamatory of the appellant. I also agree with his Honour that Channel 7 cannot rely on the defence of "innocent dissemination". I shall state my reasons for that conclusion.

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 466, per Brennan J.

The rule with respect to "innocent dissemination" is usually expressed by reference to a subordinate distributor, or, as is put in Gatley on Libel and Slander [48] , "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," eg by selling, distributing or handing to another a copy of the newspaper or book in which it appears" (citations omitted). The rule is there expressed in terms of a written or printed publication. The question in this case is whether the rule applies to the electronic media. And the answer to that necessarily depends on the principle upon which that rule rests and the purposes which it serves.

Innocent dissemination has its origins in the decision in Emmens v Pottle [49] . In that case Bowen LJ drew an analogy between an innocent carrier and the vendor of a newspaper, saying that the vendors in that case were "no more liable than any other innocent carrier of an article which he has no reason to suppose likely to be dangerous" [50] . His Lordship added that a vendor would or might "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" [51] . Similarly, Lord Esher MR, with whom Cotton LJ agreed [52] , was of the view that the vendors were not liable, they being "innocent disseminators of a thing which they were not bound to know was likely to contain a libel" [53] .

(1885) 16 QBD 354. 2. Emmens v Pottle (1885) 16 QBD 354 at 358 3. Emmens v Pottle (1885) 16 QBD 354 at 358 4. Emmens v Pottle (1885) 16 QBD 354 at 358 5. Emmens v Pottle (1885) 16 QBD 354 at 357

In Emmens v Pottle , only Lord Esher MR ventured an explanation of the decision reached in that case, observing that [54] :

If [the vendors] were liable, the result would be that every common carrier who carries a newspaper which contains a libel would be liable for it, even if the paper were one of which every man in England would say that it was not likely to contain a libel. To my mind the mere statement of such a result shews that the proposition from which it flows is unreasonable and unjust and, in my opinion, any proposition the result of which would be to shew that the Common Law of England is wholly unreasonable and unjust, cannot be part of the Common Law of England. In the later case of Vizetelly v Mudie's Select Library Ltd [55] , Romer LJ expressed the view that the decision in Emmens v Pottle "worked substantial justice", but added that the way in which the result was arrived at was not "altogether satisfactory" and that the judgments did not "very clearly indicate on what principle Courts ought to act in dealing with similar cases in future". 1. Emmens v Pottle (1885) 16 QBD 354 at 357-358 2. [1900] 2 QB 170 at 180.

Notwithstanding the absence of any clear supporting principle, the decision in Emmens v Pottle has been followed in the United Kingdom [56] and in Canada [57] , and, subject to the question whether printers should now be seen as subordinate distributors, accepted as correct in this country [58] and in New Zealand [59] . The rule is usually stated in terms involving three discrete considerations, namely, whether the distributor knew that the book or paper contained the libel complained of, whether he or she knew that it was of a character that was likely to contain a libel and whether want of knowledge was due to his or her negligence [60] . However, as was pointed out by Scrutton LJ in Sun Life Assurance Co of Canada v W H Smith & Son Ltd [61] , the relevant consideration can conveniently be expressed as whether the distributor knew or ought to have known that it contained a libel. That is the way the matter was put by Lord Denning MR in Goldsmith v Sperrings Ltd [62] and the equivalent rule in the United States of America is expressed in much the same way [63] .

Vizetelly v Mudie's Select Library Ltd [1900] 2 QB 170 Weldon v The Times Book Co Ltd (1912) 28 TLR 143 Bottomley v F W Woolworth & Co Ltd (1932) 48 TLR 521 Sun Life Assurance Co of Canada v W H Smith & Son Ltd (1933) 150 LT 211 Goldsmith v Sperrings Ltd [1977] 1 WLR 478[1977] 2 All ER 566 2. Newton v City of Vancouver (1932) 46 BCR 67 Lambert v Roberts Drug Stores Ltd [1933] 4 DLR 193 3. McPhersons Ltd v Hickie [1995] AustTorts Reports ¶81-348. 4. Jensen v Clark [1982] 2 NZLR 268 Crocombe v Examiner Newspapers Ltd (unreported; High Court of New Zealand; 24 February 1992). 5. Vizetelly v Mudie's Select Library Ltd [1900] 2 QB 170 at 180 6. (1933) 150 LT 211 at 212. 7. [1977] 1 WLR 478 at 487; [1977] 2 All ER 566 at 572-573. 8. See the Second Restatement, Torts (1976) s581, p 231 where it is said that, except in the case of radio and television broadcasts, "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". See also 53 CJS Libel and Slander; Injurious Falsehood s55; and Prosser and Keeton on the Law of Torts, 5th ed (1984), pp 810-811.

In terms of the usual formulation of the rule, two questions are raised by the claim that Channel 7 is entitled to raise a claim that it innocently disseminated the material of which the appellant complains. The first is whether a broadcaster who retransmits televised material necessarily knows or ought to know the character of the material which it retransmits so that, as a matter of fact, the rule cannot apply. The second is whether, in relation to retransmitted material, a broadcaster is a subordinate distributor.

There are three matters which clearly emerge from the decisions with respect to innocent dissemination. The first is that printers have been treated as not coming within the rule [64] ; the second is that the onus is on a distributor who claims the benefit of the rule to establish that he or she neither knew nor ought to have known of the defamatory character of the material in question [65] ; the third is that a distributor who establishes that he or she is an innocent disseminator is not liable because, for the purposes of the law of defamation, he or she did not publish the material in question [66] .

See, eg, Emmens v Pottle (1885) 16 QBD 354 at 357and Vizetelly v Mudie's Select Library Ltd [1900] 2 QB 170 at 180 2. See, eg, Emmens v Pottle (1885) 16 QBD 354 at 357 Vizetelly v Mudie's Select Library Ltd [1900] 2 QB 170 at 180 Weldon v The Times Book Co Ltd (1912) 28 TLR 143 at 144 Sun Life Assurance Co of Canada v W H Smith & Son Ltd (1933) 150 LT 211 at 212and Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 505[1977] 2 All ER 566 at 587(Lord Denning MR dissenting at 487; 572). 3. See, eg, Emmens v Pottle (1885) 16 QBD 354 at 357 Vizetelly v Mudie's Select Library Ltd [1900] 2 QB 170 at 175, 178, 179; and Sun Life Assurance Co of Canada v W H Smith & Son Ltd (1933) 150 LT 211 at 214

It is generally accepted that a printer cannot rely on the defence of innocent dissemination because, at least in times past, printing methods were such that the printer inevitably acquired a knowledge of what was being printed. It has been suggested that present technology may require this aspect of the rule to be reconsidered [67] . And in the United Kingdom, the Faulks Committee recommended, in 1975, that the defence of innocent dissemination be extended to printers, saying that "a valid comparison can be made between printers and distributors in relation to the moral responsibility which they bear for the content of the publications which they handle, and the degree of scrutiny which they can reasonably be expected to make of the content of such publications" [68] .

See McPhersons Ltd v Hickie [1995] AustTorts Reports ¶81-348 and Jensen v Clark [1982] 2 NZLR 268 2. United Kingdom, Report of the Committee on Defamation, Cmnd 5909 (1975), p 83. See also New Zealand, Report of the Committee on Defamation (1977), p 79 and Australian Law Reform Commission, Unfair Publication: Defamation and Privacy, No 11 (1979), p 100. Section 21 of the New Zealand Defamation Act 1992 has extended the defence to printers.

For the moment, the position with respect to printers can be put to one side. For immediate purposes, all that need be said is that the evidence is that, unlike printers in earlier times, broadcasters who retransmit televised material do not necessarily acquire any knowledge of that material. Nor is it relevant for present purposes to consider whether a broadcaster ought to know what is being retransmitted. That is a question to be answered by reference to the circumstances of the case [69] . Thus, it cannot be said that, as a matter of fact, the rule as to innocent dissemination cannot apply to those who retransmit televised material. Accordingly, it is necessary to consider whether a broadcaster is, in relation to the retransmission of televised material, a secondary distributor.

See, eg, Vizetelly v Mudie's Select Library Ltd [1900] 2 QB 170and Sun Life Assurance Co of Canada v W H Smith & Son Ltd (1933) 150 LT 211

The respondents contend that the rationale underlying the concept of "secondary distributor" is that the person in question does not participate in "the production, selection or composition of the matter" and does not have "the ability to exercise control or supervision over the material which makes up the matter published". The difficulty with that submission is in relating it to some aspect of the law of defamation or, more precisely, some aspect of the law relating to publication, it being clear, as already indicated, that, for the purposes of the law of defamation, innocent dissemination does not constitute publication.

It has been suggested that innocent dissemination does not constitute publication because of the requirement in earlier times that publication be malicious [70] . That may be so. However, the concept of innocent dissemination - a concept which was developed to take account of the practices and technology of the day with respect to the publication of printed matter and which now falls for consideration in the light of modern technology - necessarily directs attention to the present law relating to publication.

Vizetelly v Mudie's Select Library Ltd [1900] 2 QB 170 at 178, per Vaughan Williams LJ.

There are cases involving communications between individuals which make it clear that liability does not attach to the accidental publication of defamatory matter. Thus, for example, the sender of a letter is not liable if it is intercepted and read by some unauthorised third person [71] . The position is otherwise if the letter is opened by a servant or agent in the ordinary course of the addressee's business and that possibility is known to the sender [72] . Thus, as is put in Gatley on Libel and Slander [73] , there is no publication if the communication "was neither intentional nor due to any want of care".

See, eg, Huth v Huth [1915] 3 KB 32and Powell v Gelston [1916] 2 KB 615 2. See, eg, Gomersall v Davies (1898) 14 TLR 430and Pullman v Hill & Co [1891] 1 QB 524 3. 8th ed (1981), par 235. See also Fleming, The Law of Torts, 8th ed (1992), p 543; Balkin and Davis, Law of Torts, 2nd ed (1996), p 537; and Brown, The Law of Defamation in Canada, 2nd ed (1994), vol 1, p 377.

However, it is in the area of mass communication that questions arise with respect to innocent dissemination. And in that area, publication is usually said to depend on authorisation or participation [74] . Authorisation is also relevant to communications between individuals. A person who makes a defamatory statement to another and authorises or intends its repetition to some third person is liable for its repetition or, more accurately, publishes the statement to that third person. The matter was put succinctly by Isaacs J in Webb v Bloch [75] , saying of R v Cooper [76] that "[t]he judgments [in that case] show that all the defendant did was to authorise the publication of the libel, in law that he published it".

See Gatley on Libel and Slander, 8th ed (1981), par 236; Balkin and Davis, Law of Torts, 2nd ed (1996), pp 537-538; and Brown, The Law of Defamation in Canada, 2nd ed (1994), vol 1, p 345. 2. (1928) 41 CLR 331 at 364. 3. (1846) 8 QB 533.

It is well settled that a person is liable for acts done by a servant in the course of his or her employment or by an agent acting within authority or with ostensible authority, notwithstanding that he or she lacks knowledge of the acts in question [77] . So too, a newspaper proprietor is liable in defamation even though the defamatory matter was published without his knowledge. As is pointed out in Gatley , "the editor is his servant and it is within the scope of his employment to send to the printers whatever matter he thinks ought to be published" [78] . Given that knowledge is irrelevant to the liability of one who authorises another to act on his or her behalf, the rule with respect to innocent dissemination, which is postulated on the want of knowledge, can have no application to one who publishes by authorising the publication in question.

See, generally, Bugge v Brown (1919) 26 CLR 110 Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41and Deatons Pty Ltd v Flew (1949) 79 CLR 370 2. Gatley on Libel and Slander, 8th ed (1981), par 237.

In my view, it ought now be accepted that one who publishes by authorising a communication is not a subordinate distributor. Conversely, in my view, it ought also be accepted that one who does not authorise the communication but participates in it in some other way is a subordinate distributor and entitled to rely on the defence of innocent dissemination. To put the matter that way is simply to put a person who only participates in a mass communication on an equal footing with one who communicates defamatory matter to an individual. As already indicated, a person who communicates defamatory matter to another is liable only if the communication is intentional or negligent.

There can be no doubt that Channel 7 authorised the retransmission to its viewers by its servants or agents of the material which was defamatory of the appellant. Without its authority, the material would not have been retransmitted. And it is sufficient that it authorised the retransmission to its viewers of whatever was transmitted by Channel 9 without regard to its contents. Having authorised its retransmission, Channel 7 published the material in question. It cannot rely on the defence of innocent dissemination.

Two matters should be noted if the rule with respect to innocent dissemination applies, as I think it does, to those who participate in the communication of defamatory matter but do not authorise that communication. First, the rule is capable of and should now be seen as extending to printers: their former exclusion results not from the application of principle, but from their inability to establish, as a matter of fact, that they did not know the character of the material in question.

The other matter to be noted is that the law relating to publication provides no basis for the requirement that a subordinate distributor establish that he or she neither knew nor ought to have known of the defamatory character of the material in question [79] . However, in many cases the circumstances may warrant an evidentiary presumption with the consequence that the onus is properly cast upon a distributor to show that he or she innocently disseminated the material. And as the question of innocent dissemination will often depend on the particular practices and technologies used by the distributor, there is no practical injustice in requiring that he or she establish both want of knowledge and want of negligence.

Note that in Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 487[1977] 2 All ER 566 at 572, Lord Denning expressed the view that it was for the plaintiff to prove either knowledge or negligence.

The appeal should be allowed. Orders should be made as proposed by Gummow J.

On the relevant date, 21 February 1984, the first respondent (Channel 7) operated a television station in the Australian Capital Territory (the Territory). The station had a viewing audience in the Territory and adjoining areas of New South Wales, including Queanbeyan. The appellant was then living in Queanbeyan. In an action he instituted in the Supreme Court of the Territory, the appellant sought damages for defamation arising out of the television broadcast by Channel 7 on 21 February 1984 of a programme entitled "The Today Show".

The programme included an interview with a daughter of the woman with whom the appellant lived as husband and wife. The daughter made serious allegations against the appellant, including the claim that he had fathered a child to whom she had given birth when she was aged fourteen. The allegations have not been substantiated and, indeed, it is not now suggested that the allegations were true. Nevertheless, the appellant to date has not succeeded in his action against Channel 7.

This appeal is brought by the appellant from the dismissal by the Full Court of the Federal Court of Australia (Burchett and Ryan JJ, Miles J dissenting) [80] of his appeal against the entry of judgment in favour of Channel 7 in his action.

Thompson v Australian Capital Television Pty Ltd (1994) 54 FCR 513

The programme was produced for the second-named second respondent, TCN Channel Nine Pty Ltd (Channel 9), in Sydney. The broadcast was "live to air" from the studios of Channel 9 at Willoughby in Sydney. It was received by a microwave link at the transmitting site of Channel 7 on Black Mountain in the Territory. From there, the programme was relayed by a further microwave link to the studios of Channel 7 at Watson in the Territory. Thence it was broadcast by Channel 7 to viewers in the Territory and adjoining regions in New South Wales.

The first-named second respondent is Publishing & Broadcasting Pty Ltd (PBL). This is a related corporation of Channel 9. Before the relevant date in 1984, PBL had made a written offer to Channel 7. This appears to have been accepted by Channel 7 with the result that Channel 7 acquired, for consideration, a licence of what were identified as "copyright rights" of PBL in episodes of "The Today Show". The written offer stated:

In consideration of the payment of the fees and charges herein provided the station and translators listed are hereby licenced to broadcast by television transmission only the program herein described and the licencee shall not assign its rights under this agreement nor grant any sub-licence in respect of the said program without prior written consent of [PBL]. On the relevant date, s 91(a)(ii) of the Copyright Act 1968 Cth provided that copyright subsisted in a television broadcast made from a place in Australia pursuant to a licence granted under what was then the Broadcasting and Television Act 1942 Cth [81] . Section 87(c) of the Copyright Act identified copyright, in relation to a television broadcast, as including the exclusive right to re-broadcast the television broadcast. Hence the necessity for the arrangement which I have described between PBL and Channel 7 (the licence agreement) [82] . 1. The citation of this statute was amended by omitting "and Television" by s 4 of the Broadcasting and Television Amendment Act 1985 Cth. Consequential amendments to the Copyright Act were made by s 3 of the Broadcasting and Television (Consequential Amendments) Act 1985 Cth. 2. Sections 87 and 91 are found in Pt IV of the Copyright Act (ss 84-113) which is headed " Copyright in Subject Matter Other Than Works ". No point, for present purposes, turns upon use in the relevant television broadcast of any literary, dramatic, musical or artistic work in which copyright subsisted pursuant to Pt III of the Copyright Act (ss 31-83).

The action was heard by a judge of the Supreme Court (Gallop J) sitting without a jury. At the time of the commission of the acts complained of in the Territory, the defamation law there was the common law as varied and supplemented by those laws of the State of New South Wales continued in force in the Territory pursuant to s 6 of the Seat of Government Acceptance Act 1909 Cth and ss 3 and 4 of the Seat of Government (Administration) Act 1910 Cth [83] . Nothing has turned on the circumstance that the broadcast in question was received on the television sets of viewers some of whom were in the Territory and others in New South Wales [84] .

The New South Wales statutes included the Defamation Act 1901 NSW and the Defamation (Amendment) Act 1909 NSW. The New South Wales Acts Application Ordinance 1984, containing more detailed provision as to the application in the Territory of New South Wales legislation, was not made until 2 August 1984, after the occurrence of the events giving rise to the present action. 2. cf Gorton v Australian Broadcasting Commission (1973) 22 FLR 181 at 183 David Syme & Co Ltd v Grey (1992) 38 FCR 303

By a third party claim, Channel 7 sought contribution or indemnity from Channel 9 and PBL. It did so on various bases. One was said to be provided by s 11 of the Law Reform (Miscellaneous Provisions) Act 1955 ACT (the Law Reform Act), namely that these third parties were liable as joint tortfeasors in relation to the broadcasting by Channel 7 of the programme. Channel 7 also alleged breach by Channel 9 and PBL of an implied condition in the licence agreement that they would exercise reasonable care in relaying the programme so as to ascertain whether it was capable of being defamatory or was in fact defamatory of the plaintiff, before relaying the programme to Channel 7.

The trial judge ordered that judgment be entered for Channel 7 in the action and dismissed the third party claim. His Honour found that the appellant had proved the publication of the defamatory matter complained of, but decided that Channel 7 had made out a defence of "innocent dissemination". His Honour also held that by a deed between the appellant and Channel 9 executed on 23 August 1985 (the Deed of Release) there had been a release not only of Channel 9 but also of Channel 7 as joint tortfeasor.

The Deed of Release was expressed to be a deed and to be executed as such. The appellant signed the instrument in New South Wales. It recited that an action had been commenced in the Supreme Court of New South Wales by the appellant against Channel 9 claiming damages for defamation arising out of publication on 21 February 1984 in the television programme "The Today Show" of certain words and images. In cl 1, the Deed of Release then provided that, without admission of liability and in consideration of Channel 9 paying to the appellant $50,000, the appellant:

[f]orever releases and discharges [Channel 9] and its servants agents and related companies their servants and agents from all actions suits causes of action claims and demands whatsoever which [the appellant] now has or at any time hereafter may have or but for the execution of this Deed could would or might have had against [Channel 9] or any of its servants agents or related companies their servants and agents arising out of or in respect of the publication of the said matter the subject of the said action.

The Full Court held that Channel 7 had not made out the defence of "innocent dissemination". It nevertheless dismissed the appeal. This was on the ground that s 11 of the Law Reform Act did not abrogate what was identified as the common law principle that release of one joint tortfeasor operates as a release of the others.

Upon the appeal to this Court three issues were agitated. The first arises upon notices of contention. It concerns the nature of the so-called defence of "innocent dissemination", and whether the Full Court erred in holding that it had not been made out by Channel 7. The second and the third issues are related to one another. They are, respectively, whether in respect of the publication of the defamatory matter upon which the appellant sues Channel 7 it was a joint tortfeasor with Channel 9, and, if so, whether by the Deed of Release that cause of action was released as regards Channel 7 as well as Channel 9.

The appellant seeks an order that the action be remitted to the Supreme Court of the Territory for assessment of damages. To obtain that relief, the appellant must succeed in resisting the attack upon the Full Court's rejection of the "innocent dissemination" defence. He also must establish either that Channel 7 and Channel 9 were not joint tortfeasors, or that, if they were, there was no release which might be pleaded by Channel 7 in bar to his action against it. All respondents submitted that Channel 7 and Channel 9 were joint tortfeasors and the release of Channel 9 was a bar to the action against Channel 7.

I consider first the question whether Channel 7 and Channel 9 were joint tortfeasors.

The distinction which must be considered is between, on the one hand, the one tortious injury in respect of which the plaintiff has one cause of action, albeit against two or more defendants, and, on the other, the one tortious injury in respect of which there are distinct liabilities of a plurality of concurrent tortfeasors. In the latter case a judgment against or release of one concurrent tortfeasor does not bar any action against other concurrent tortfeasors in respect of the same damage [85] . The appellant submits that Channel 9 and Channel 7 were not joint tortfeasors in respect of the matter of which he complains and that, as a result, the Deed of Release had no legal effect upon his cause of action against Channel 7.

Castellan v Electric Power Transmission Pty Ltd (1967) 69 SR(NSW) 159 at 180-181.

In England, Australia and New Zealand, criteria for the identification of joint tortfeasors are to be found in expressions used in The "Koursk" [86] . Scrutton LJ [87] there spoke of "two persons who agree on common action, in the course of, and to further which, one of them commits a tort", saying that in such a case there is one tort committed by one of them "in concert with another". Sargant LJ [88] accepted the proposition that persons are joint tortfeasors when their "respective shares in the commission of the tort are done in furtherance of a common design" so that those who "aid or counsel, direct, or join" in commission of the tort are joint tortfeasors [89] .

[1924] P 140. 2. The "Koursk" [1924] P 140 at 155. 3. The "Koursk" [1924] P 140 at 159-160. 4. Examples of the application of these principles are found in Bourke v Jessop [No 3] [1935] NZLR 246 at 259-260 Nilon v Bezzina [1988] 2 Qd R 420 at 424and Myer Stores Ltd v Soo [1991] 2 VR 597 at 630

It is pointed out in Nilon v Bezzina [90] that in some jurisdictions in the United States notions of "concerted action", "common design", and "joint enterprise" have been treated more loosely. Situations where a single, indivisible harm has been sustained as a result of the independent and separate but concurring tortious acts of two or more persons are there also properly classed as independent concurrent torts, and should not be viewed as "joint torts". However, there appears to be an increasing tendency in judicial decisions and among legal commentators to impose in such cases joint and several liability for the damage caused by such wrongs. The result is to establish such torts as "joint" in their practical effect [91] .

[1988] 2 Qd R 420 at 424. 2. Harper, James and Gray, The Law of Torts, 2nd ed (1986), vol 3, s10.1.

In the present case, the appellant failed to persuade the Full Federal Court that Channel 7 and Channel 9 were no more than concurrent tortfeasors in respect of the broadcast in the Territory from the studios of Channel 7. The point was dealt with most fully by Miles J, who, in this respect, was not in dissent. His Honour said [92] :

The geographical and jurisdictional aspects are unusual. [Channel 9] did not commit any act within [the Territory]. What it did was to transmit from its New South Wales studios signals which, in accordance with an arrangement with [Channel 7], were picked up via microwave link by the [Channel 7] transmitter on Black Mountain, further transmitted by [Channel 7] to its studio at Watson, and then broadcast or rebroadcast from there to the viewing audience. That, in my view, gives rise to a sufficient nexus between the conduct of [Channel 9] and that of [Channel 7] to lead to the conclusion that each participated in the broadcast. The fact that the conduct of [Channel 9] occurred outside [the Territory] does not, in my view, stand in the way of a conclusion that [Channel 9] participated jointly with [Channel 7] in the broadcast from the studio of the latter in [the Territory]. 1. Thompson (1994) 54 FCR 513 at 536

The facts in this case may be compared with the limited facts before the Full Federal Court in Victorian Broadcasting Network Ltd v Whitlam [93] . That was an appeal against a refusal to set aside service upon the appellant in Victoria, purportedly pursuant to the Service and Execution of Process Act 1901 Cth, of a writ of summons issued out of the Supreme Court of the Territory. That writ claimed damages for libel in respect of the relayed television broadcast by the first defendant in the Territory of a certain "current affairs" programme. The appellant, another defendant, operated a television station in Victoria and broadcast the same programme there by arrangement with the producer. The Full Federal Court concluded [94] that there was no evidence which tended to show that the appellant had any concerted design or joint purpose to telecast in the Territory the programme in question or that it was party to any relevant concerted design or joint purpose which would make it a joint tortfeasor in relation to the publication of that programme in the Territory by the first defendant.

(1980) 42 FLR 256; 31 ALR 184. 2. Victorian Broadcasting Network (1980) 42 FLR 256 at 261-262; 31 ALR 184 at 189.

In the present case, in addition to the matters referred to by Miles J, the programme was broadcast by Channel 7 in the Territory in exercise of its rights to do so under a contractual licence with PBL, the related corporation of Channel 9. Further, without that licence, the broadcast would, as between Channel 7 and PBL, have been an invasion of the rights of PBL. The material broadcast by Channel 7 was directly provided by Channel 9. Moreover, given the nature of the material as part of "The Today Show", it must have readily been apparent to both Channel 7 and Channel 9 that the commercial value of the programme lay in its topicality, so that it would be appropriate to broadcast it forthwith in the Territory.

The situation thus disclosed may be contrasted with that considered by the House of Lords in CBS Songs Ltd v Amstrad Plc [95] . The plaintiffs were owners of copyright in sound recordings and musical works. They claimed that the defendants, by manufacturing, advertising and offering for sale equipment for transferring the material on prerecorded cassettes to blank tapes, were joint tortfeasors with such members of the public who used the equipment to infringe their copyrights [96] . After referring to the use by Scrutton LJ of the phrase "in furtherance of a common design" in The "Koursk" [97] , Lord Templeman continued [98] :

My Lords, joint infringers are two or more persons who act in concert with one another pursuant to a common design in the infringement. In the present case there was no common design. Amstrad sold a machine and the purchaser or the operator of the machine decided the purpose for which the machine should from time to time be used. The machine was capable of being used for lawful or unlawful purposes. All recording machines and many other machines are capable of being used for unlawful purposes but manufacturers and retailers are not joint infringers if purchasers choose to break the law. In the present case the licence agreement existed for the common commercial benefit of Channel 7 and Channel 9. The material supplied pursuant to that licence agreement was, given its nature, for transmission forthwith in the Territory. The television programme sued upon was not capable of use for a purpose which, in respect of the rights of the appellant, was a lawful one. 1. [1988] AC 1013. 2. There was a separate (and also unsuccessful) complaint of "authorisation" within the meaning of s 1(1) and (2) of the Copyright Act 1956 UK. This resembles s 36(1) of the Copyright Act 1968 Cth considered in University of New South Wales v Moorhouse (1975) 133 CLR 1 3. [1924] P 140 at 156. 4. CBS Songs Ltd [1988] AC 1013 at 1057.

The submissions for the appellant which seek to establish that Channel 7 and Channel 9 were not joint tortfeasors should be rejected. It therefore becomes necessary to consider the effect upon the liability of Channel 7 and Channel 9 as joint tortfeasors of the release of Channel 9 contained in cl 1 of the Deed of Release. The issues that are thus raised are best dealt with only after a consideration of the underlying common law and statute law.

Sub-sections (1), (2) and (3) of s 11 of the Law Reform Act follow the terms of s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 NSW (the NSW Act) which in turn adopted s 6 of the Law Reform (Married Women and Tortfeasors) Act 1935 UK (the UK Act). The Territory provision states:

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 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, or for the benefit of the estate of that person, or for the benefit of the person or persons for whose benefit an action may be brought under the Compensation (Fatal Injuries) Act 1968 in respect of the death of that person, 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 is not entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action.

The appellant submits that s 11 impliedly abrogates or assumes the abrogation of the unity and indivisibility at common law of a cause of action against joint tortfeasors. One secondary consequence thereof is the removal of the bar to an action against a remaining joint tortfeasor, despite recovery of judgment, a matter to which the legislation specifically is directed. Another secondary consequence is said to be that a release of one joint tortfeasor, such as that effected by cl 1 of the Deed of Release, no longer has the effect of releasing, because it is not now indivisible, the cause of action against any other joint tortfeasor.

Accordingly, the appellant contends that cl 1 of the Deed of Release between him and Channel 9 was ineffective to release his rights against Channel 7. That favourable result is said to be the consequence, in the manner I have described, of the interaction between statute and the previous operation of the common law. In order to determine whether, in its operation in the Territory, the common law is now so restricted, it is necessary to consider the foundation upon which the common law operated when prescribing the effect upon other joint tortfeasors of a judgment against, or a release of, one of them. That requires an understanding of the basis of joint liability in tort. To this I first turn.

At common law, the liability of joint tortfeasors was said to be joint and several. The plaintiff might sue any one of the tortfeasors separately for the full amount of the loss, or all of them jointly in the same action. Thus in Cocke v Jennor [99] , decided in 1614, it was adjudged by the Court of King's Bench, on a demurrer, that "though a trespass be joint, and several to this purpose, that he may sue either one or all, yet when two join in a trespass, they so make one trespasser, as either of them is as well answerable for his fellows fact as for himself". In 1605, in Brown v Wootton [100] , the King's Bench said of a cause of action in trover against several persons:

[T]he plaintiff having judgment against one person for damages certain, that which was uncertain before is reduced in rem judicatam, and to certainty; which takes away the action against the others. 1. (1614) Hob 66 [80 ER 214 at 215]. See also Brown v Wooton (1605) CroJac 73 [79 ER 62]; Broome v Wooton Yelv 67 [80 ER 47]; Brown v Wotton Moore (KB) 762 [72 ER 890]; Mitchell v Tarbutt (1794) 5 TR 649[101 ER 362]. 2. Reported in several series, see fn 20. The quotation is from Croke's Reports for James I, Cro Jac 73 at 74 [79 ER 62 at 63].

Nevertheless, the notion of joint and several liability in tort did not bear the same meaning as does joint and several liability in contract. There, in general, judgment against one contractor who is jointly and severally liable does not bar the several remedy against the others [101] , whereas judgment against one of several joint tortfeasors was said in England to discharge the others in respect of that tort [102] .

Williston on Contracts, 3rd ed (1959), vol 2, s328. 2. Glanville Williams, Joint Torts and Contributory Negligence (1951), s10.

In several jurisdictions in the United States, significance was attached to the several as well as joint nature of the liability of joint tortfeasors. This was taken as providing the foundation for a principle that recovery of judgment against one tortfeasor was no bar to a trial and judgment against another. In Livingston v Bishop [103] , Chancellor Kent [104] said:

It is, however, a proposition that is not controverted, but everywhere admitted, that for a joint trespass, the plaintiff may sue all the trespassers jointly, or each of them separately, and that each is answerable for the act of all. It would seem to result from this doctrine, that a trial and recovery against one trespasser is no bar to a trial and recovery against another

The case of Brown v Wootton [105] stands, however, opposed to this view of the subject, and it merits some attention. That was an action of trover for certain goods, and the defendant pleaded a judgment and execution in behalf of the plaintiff, against one I S, for the same goods, and the plea was held good. The court took a distinction between a demand and a recovery of a thing certain, and of a thing uncertain; and they held that, in the first case, as where two are bound, jointly and severally, in a bond, a recovery and execution against one was no bar against the other, without satisfaction; but where the demand rests only in damages, as in trespass, a recovery and judgment against one was a bar against the other, for the uncertain demand is now made certain by the judgment, and the plaintiff shall not resort to the uncertain demand again. In this case there was a judgment and execution in the first cause, and so far, therefore, as the opinion of the court goes to declare that a judgment alone constituted a bar, the opinion was extra-judicial. The principle, however, which the court went upon, between a demand for a thing certain and a thing uncertain, applied equally to both cases;

(1605) Cro Jac 73 [79 ER 62]; Yelv 67 [80 ER 47]; Moore (KB) 762 [72 ER 890].

This case of Brown v Wootton was clearly introductory of a new rule.

(1806) 1 Johnson 290 [3 American Decisions 330 at 330-332]. 2. Then Chief Justice of New York (1804-1814), before becoming (1814-1823) Chancellor of the New York Court of Chancery. 3. (1605) Cro Jac 73 [79 ER 62]; Yelv 67 [80 ER 47]; Moore (KB) 762 [72 ER 890].

That judgment, together with the majority decision of the Supreme Court of Connecticut in Sheldon v Kibbe [106] , were approved by the Supreme Court of the United States in Lovejoy v Murray [107] . It there laid down that a judgment against one joint trespasser was no bar to a suit against another for the same trespass. Nothing short of full satisfaction, or that (such as a release) which the law considers the equivalent, can make such judgment a bar. The result was expressed as follows in 1872 by Gray J [108] then a member of the Supreme Judicial Court of Massachusetts, in Elliott v Hayden [109] :

[J]oint trespassers are liable severally as well as jointly, and may be sued in one or in several actions. The judgment against one joint trespasser in an action against him alone is a merger indeed of the cause of action against him, but not of the right of action against any one who was not a party to the suit in which the judgment was recovered; and does not, without satisfaction, transfer the property to the defendant. It cannot therefore bar a right of action against cotrespassers who were severally as well as jointly liable. 1. (1819) 3 Connecticut 214. 2. (1865) 70 US 1. 3. Justice of the Supreme Court of the United States (1882-1902), described by Williston as the most learned American judge of his generation in the essay "Horace Gray" in Lewis (ed), Great American Lawyers (1909), vol 8, 139, at p 168. 4. (1872) 104 Massachusetts 180 at 181.

The consequence was divergence from the English common law as it was settled in 1872 by the Exchequer Chamber in Brinsmead v Harrison [110] . This was recognised at the time by Oliver Wendell Holmes in his notes to Kent's Commentaries [111] , and by Blackburn and Lush JJ in Brinsmead v Harrison [112] itself. The Exchequer Chamber preferred the acceptance of Brown v Wootton by Parke B in King v Hoare [113] .

(1872) LR 7 CP 547. 2. Reproduced in The Collected Works of Justice Holmes, Novick (ed) (1995), vol 2, pp 162-163. 3. (1872) LR 7 CP 547 at 554, 555. 4. (1844) 13 M & W 494 [153 ER 206].

Parke B decided that, even if liability in respect of a joint tort be joint or several at the election of a plaintiff, there is but one entire and indivisible cause of action incapable of separation or division so that whether the action be brought against one or more of the joint tortfeasors, it is the same cause of action. This merges in the first judgment entered. As Parke B put it in King v Hoare [114] :

The judgment of a court of record changes the nature of that cause of action, and prevents its being the subject of another suit, and the cause of action, being single, cannot afterwards be divided into two. 1. (1844) 13 M & W 494 at 504 [153 ER 206 at 210].

One consequence of looking at the matter in this way was to deny any right of contribution between joint tortfeasors. It should be recalled that, at the time of the seventeenth century cases and for a significant time thereafter, "tort" identified wilful and intentional wrongs [115] . Hence the corollary that, if joint tortfeasors had taken part voluntarily in the wrongful act which gave rise to an indivisible cause of action, the result was that in claiming contribution one joint tortfeasor was attempting to recover in respect of what in law was the claimant's own wrong. That seems to be the basis of the tersely stated reasoning of Lord Kenyon LCJ in Merryweather v Nixan [116] .

A point made by Lord Halsbury in Palmer v Wick and Pulteneytown Steam Shipping Co [1894] AC 318 at 333-334 2. (1799) 8 TR 186 [101 ER 1337]. See Prosser, Joint Torts and Several Liability, California Law Review, vol 25 (1935) 413, at pp 425-429.

The technical rule as to the indivisibility of the cause of action so established in English common law, was accepted in this Court by Taylor J in Ramsay v Pigram [117] , after it had been expounded by Jordan CJ in a series of judgments [118] .

(1968) 118 CLR 271 at 285-287. 2. Bell v Thompson (1934) 34 SR(NSW) 431 at 435-436; Parker v Paton (1941) 41 SR(NSW) 237 at 243; Dougherty v Chandler (1946) 46 SR(NSW) 370 at 375.

What was the end sought to be served by the development in its American and English manifestations of this common law rule as to the nature of the liability of joint tortfeasors? This is an important consideration for the present appeal. Whilst the appellant does not challenge Brinsmead v Harrison , he submits that statute has removed, or presupposes for its operation the removal of, the reason and justification of Brinsmead v Harrison .

Wigmore identified the rationale of the common law as being the practical unfairness of denying redress to the plaintiff where the plaintiff could not prove to the satisfaction of the jury how much damage had been inflicted by the joint wrongdoers, although it was certain that, between them, they inflicted all of it [119] . That practical unfairness was diminished by treating the wrongful activity as giving rise to an indivisible, unitary cause of action in the sense described. That rationale is reflected in the following passage (in which citations are omitted) from the judgment of Jordan CJ in Bell v Thompson [120] :

If an action be brought against several persons who are alleged to be joint tort feasors in respect of a single cause of action, and the jury finds one to be not guilty, he may be acquitted, and damages awarded against the others who are found to be guilty If, at the close of the plaintiff's case, there be no evidence against one, it is discretionary with the Judge whether he will direct an acquittal of that one or whether he will allow the case to proceed as to all Damages must be jointly assessed as to all who are found guilty; the jury has no power to sever and apportion damages All joint tort feasors who have contributed to a joint wrong are jointly and severally liable for the whole of the damage caused by their common act. None can be heard to say that his contribution to the injury was smaller than that of the others. 1. Wigmore, Select Cases on the Law of Torts (1912), s153; Wigmore Joint-Tortfeasors and Severance of Damages; Making the Innocent Party Suffer without Redress, Illinois Law Review, vol 17 (1923) 458; Gendel, Torts: Concurrent But Independent Wrongdoers: Joint Liability for Entire Damages, California Law Review, vol 19 (1931) 630, at 637. 2. (1934) 34 SR (NSW) 431 at 435.

The requirement that damages be jointly assessed as to all found guilty and the absence of any power of the jury to sever and apportion damages also reflected the unitary nature of the cause of action. This was emphasised by Gibbs CJ in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [121] . The merger in the first judgment of that single cause of action also explained why, even if it remained unsatisfied, that judgment was a bar to an action against any other of the joint tortfeasors. Gibbs CJ stressed this in the same passage in XL Petroleum. The notion of an indivisible cause of action (and considerations of privity) also support the evidentiary rule that admissions of one joint tortfeasor made during the subsistence of their relationship are admissible against another such tortfeasor [122] .

(1985) 155 CLR 448 at 455-456. 2. Ramsay v Pigram (1968) 118 CLR 271 at 287-288 Kearl v Wonnacott [1927] 4 DLR 1051 at 1056Wigmore treats these admissions as receivable on the same principle as those of conspirators: Evidence in Trials at Common Law, Chadbourn Rev (1972), vol 4, s1079. Other scholars have drawn the link between the law as to joint tortfeasors with the origins of tort liability in the criminal law, by particular comparison with the doctrine of common purpose; see, eg, Prosser and Keeton on The Law of Torts, 5th ed (1984), s46; Smith, A Modern Treatise on the Law of Criminal Conspiracy (1991), Ch 8; cf McAuliffe v The Queen (1995) 183 CLR 108 at 113-114

The principle given expression by these rules is to be distinguished from that against double satisfaction. Where the wrongdoers were concurrent rather than joint tortfeasors, the entry of judgment in an action against one was no bar to other actions against those tortfeasors because the plaintiff had a distinct cause of action against each of them [123] . However, even here, once the plaintiff had fully recouped the loss, of necessity the plaintiff could not thereafter pursue any other remedy the plaintiff might have or which the plaintiff might earlier have pursued. Having recouped the whole of the loss, any further proceedings would, as it recently was put by the Judicial Committee, "lack a subject matter" [124] . The satisfaction might have been provided even by a stranger to the wrongdoing [125] . It appears that satisfaction of the former judgment could be asserted by a plea in bar or a plea in estoppel to any later action at law [126] . Moreover, equity would interfere by injunction to restrain the plaintiff receiving double satisfaction upon execution of a plurality of judgments which had been recovered by the plaintiff [127] .

Castellan v Electric Power Transmission (1967) 69 SR(NSW) 159 at 180-181; Glanville Williams, Joint Torts and Contributory Negligence (1951), s10. 2. Tang Man Sit v Capacious Investments Ltd [1996] AC 514 at 522 3. Castellan v Electric Power Transmission (1967) 69 SR(NSW) 159 at 180-181, per Asprey JA. 4. cf Phillips v Ward (1863) 2 H& C 717 at 721 [159 ER 297 at 298]. 5. Morris v Robinson (1824) 3 B& C 196 at 205-206 [107 ER 706 at 710]; Joyce, The Law and Practice of Injunctions in Equity and at Common Law (1872), vol 1, p 62. See also Prosser and Keeton on The Law of Torts, 5th ed (1984), s48, in which it is pointed out that some American courts have confused the rule against double satisfaction with that of merger in the first judgment entered of the cause of action on a joint tort. cf Castellan v Electric Power Transmission (1967) 69 SR(NSW) 159 at 176, per Walsh JA, who considered that the bar upon a later action might have been founded upon equitable principle, but concluded "it may not matter whether this be done by a plea at common law of the former judgment and satisfaction or by a perpetual stay of the action or by an injunction".

It was the common law principles outlined above, as developed in England, that fashioned also the treatment in Australia of releases of one of several joint tortfeasors.

In general, a release given to, and an accord and satisfaction effected with, one of a number of parties jointly or jointly and severally liable, contractually discharges the others. This is so even though, in the latter case, the obligation was joint and several, a result described as "perhaps surprising" [128] .

Halsbury's Laws of England, 4th ed, vol 9, pars 627-629. As to trustees, there is United States authority (the majority decision of the Virginia Supreme Court of Appeals in First & Merchants National Bank v Bank of Waverley (1938) 197 SE 462) which is uncritically accepted in Scott on Trusts, 4th ed (1988), vol 3A, s258, fn 2, that, although trustees are jointly and severally liable to beneficiaries, their liability is assimilated to that of tortfeasors so that a release of one co-trustee discharges all trustees. However, Lord St Leonards, as Lord Chancellor of Ireland, decided in Blackwood v Borrowes (1843) 4 Dr& War 441 at 475 that the release of one trustee discharged the other not "upon the technical ground of the release of one trustee operating as a release to the other, but upon the substance and merits of the case".

The position as regards joint tortfeasors was considered in Duck v Mayeu [129] by a judgment of the Court of Appeal comprising Lord Esher MR, Bowen and A L Smith LJJ. It was 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 [130] is distinct upon the point, and there are many subsequent cases to the same effect.

It has also been held that a covenant not to sue one of two joint debtors does not operate as a release to the other joint debtor, Hutton v Eyre [131] , the reason being that the joint action is still alive. We have found no case in which it has been held that a covenant not to sue releases a joint tortfeasor; and in our judgment the principle upon which it has been held that such a covenant does not release a joint debtor applies to the case of a joint tortfeasor.

(1815) 6 Taunt 289 [128 ER 1046]. The reason why a covenant not to sue of this nature has been held to provide a plea in bar was more fully explained by Williston in the following passage [132] : This is to avoid circuity of action; for, if the plaintiff in the original action should recover, the defendant could recover precisely the same damages back for breach of the covenant to forbear or not to sue. Instead of permitting the double action, the court produces the same effect more simply by giving judgment for the defendant in the original action. [133]
1. [1892] 2 QB 511 at 513.
2. (1614) Hob 66 [80 ER 214].
3. (1815) 6 Taunt 289 [128 ER 1046].
4. Williston on Contracts, 3rd ed (1959), vol 2, s338, pp 710-711.
5. See also Ford v Beech (1848) 11 QB 852 at 871[116 ER 693 at 700]; McDermott v Black (1940) 63 CLR 161 at 186-187and see further as to the avoidance of circuity of action Qantas Airways Ltd v Aravco Ltd (1996) 185 CLR 43

As indicated above, in Duck v Mayeu the English Court of Appeal relied upon Cocke v Jennor . Earlier in these reasons I have set out a passage from the judgment in that case dealing with the joint and several nature of the liability of joint tortfeasors. The judgment continues [134] :

And therefore a release to one discharged the whole trespass; and also a release is as good a satisfaction in law, as a satisfaction in deed. 1. Cocke v Jennor (1614) Hob 66[80 ER 214 at 215].

This appears to indicate, and has been held to mean [135] , that the release is taken to be an acknowledgment by the plaintiff of the receipt of satisfaction for the wrong, thereby providing a further basis for the rule that an unqualified release of one joint tortfeasor releases all. Williston put the point as follows [136] :

[S]ince there is but a single injury there can be but one complete satisfaction for the wrong and an unqualified release imports satisfaction. By this is meant that the law indulges the presumption that a release of one joint tortfeasor, as distinguished from a covenant not to sue was given and accepted in full satisfaction for the injury, upon a sufficient consideration, is a bar to any further action. (Emphasis added.) 1. eg, Sheldon v Kibbe (1819) 3 Connecticut 214 at 217 2. Williston on Contracts, 3rd ed (1959), vol 2, s338A, pp 715-716 (omitting citations).

The significance today of Cocke v Jennor , a decision of the King's Bench in Jacobean times, cannot be assessed without consideration of the distinction between the defence of release and that of accord and satisfaction. Allowance also is to be made for subsequent development of the common law and also of the interaction between law and equity.

Accord and satisfaction (the former being the agreement or consent to accept the latter) requires acceptance of something in place of the full remedy to which the recipient is entitled, coupled with provision of the consideration agreed upon. At common law no seal was required [137] . The release spoken of in Cocke v Jennor , being a right of action at common law, in order to be effective at common law, required a deed. In equity release of a legal right, though not under seal, was enforced by common injunction restraining the other party from pleading facts to the contrary, at least if the consideration was neither illusory nor inadequate. In a Judicature system, the conflict or variance between law and equity with respect to this matter is resolved in favour of equity and such a release may be pleaded directly. Confirmation of these propositions is provided by the judgments of Starke J and Dixon J in McDermott v Black [138] .

Blake's Case (1605) 6 Co Rep 43b [77 ER 318]. 2. (1940) 63 CLR 161 at 176-177, 183-184, 186-188. See also Creamoata Ltd v Rice Equalization Association Ltd (1953) 89 CLR 286 at 306, 326; Ames, Speciality Contracts and Equitable Defences, Harvard Law Review, vol 9 (1896) 49, at pp 53-54; Ashburner's Principles of Equity, 2nd ed (1933), pp 498-501.

The existence of a release did not necessarily indicate the receipt by the plaintiff of satisfaction in respect of the legal wrong in question. There was, at best, a presumption that this was so. Hence the statement, made with reference to United States authority [139] :

Situations in which the plaintiff desires to compromise a claim against one tortfeasor only and executes a release therefor, or when the plaintiff for some reason gratuitously releases one tortfeasor, are illustrative. Many courts have confused the two terms and held that they had the same effect: to bar further action against any of the tortfeasors whose acts produced the injury and who, before the release, were jointly and severally liable. (citations omitted) 1. Harper, James and Gray, The Law of Torts, 2nd ed (1986), vol 3, s10.1, p 32. See also Prosser and Keeton on The Law of Torts, 5th ed (1984), s49.

It is against this background that, in modern times, the rationale for the discharge of the remaining joint tortfeasors by the release of one of them should be seen as supplied not by satisfaction but solely by the ground advanced in Duck v Mayeu [140] . This is that the one and indivisible cause of action having been released, all persons otherwise liable also are released. This was the footing upon which Taylor J expressly approached the subject in Ramsay v Pigram [141] , as did Gibbs CJ in XL Petroleum [142] .

[1892] 2 QB 511 at 513. 2. (1968) 118 CLR 271 at 286. 3. (1985) 155 CLR 448 at 456. See also Apley Estates Co Ltd v de Bernales [1947] Ch 217 at 221, 222; Cutler v McPhail [1962] 2 QB 292 at 296-297 Gardiner v Moore [1969] 1 QB 55 at 83-84 Bryanston Finance Ltd v de Vries [1975] QB 703 at 732

It follows from this that if s 11 of the Law Reform Act operates upon a footing which denies the inseverable unity of the cause of action against joint tortfeasors, then there is removed the substratum upon which the authorities rest, as to discharge as a consequence of release.

The UK Act was introduced after the Third Interim Report of the Law Revision Committee [143] , presented in 1934. The Report dealt with a reference to consider the rule in Merryweather v Nixan and the denial of contribution between tortfeasors. The legislative implementation of its recommendations upon that subject, for present purposes, is found in s 11(4) and in s 12 of the Law Reform Act. At par 11 of the Report the Committee said that, in altering the law on this subject, it would seem also desirable to alter "the rule that the tort is merged in the judgment even though there is no satisfaction - with the result that a Plaintiff who has sued one tort-feasor to judgment and recovered nothing cannot afterwards proceed against another person equally liable". The result of that recommendation is to be seen in s 11(1), (2) and (3) of the Law Reform Act, set out earlier in these reasons.

In Wah Tat Bank Ltd v Chan [144] , the Privy Council considered corresponding legislation which had been enacted in Singapore. Their Lordships determined that the equivalent of s 11 abolished "in its entirety" the common law rule that there was but one cause of action which merged in the first judgment recovered, not merely that part of the rule which applied when two or more joint tortfeasors were sued in successive actions in respect of the same tort [145] . The Singapore courts had erred in deciding that the common law rule still applied where two joint tortfeasors were sued in the one action and judgment in favour of one was entered before judgment had been recovered against the other.

[1975] AC 507. 2. Wah Tat Bank Ltd v Chan [1975] AC 507 at 515-518

In XL Petroleum [146] , this Court considered the NSW Act. It was held that this had abolished the common law rule that only one judgment might be awarded in an action for damages against joint tortfeasors and that this removed the foundation for the companion rule that only one sum might be awarded by different judgments. Hence, in an action for trespass, it was open to the jury to award exemplary damages against one of several joint tortfeasors. Gibbs CJ [147] identified as consequences of the principle that in such cases there was but a single wrong and a single cause of action, the rules (i) that the jury could assess only one sum against the defendants; (ii) that judgment against one tortfeasor barred an action against the others; and (iii) the release of one joint tortfeasor released all. The Chief Justice said [148] :

Once it is 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. Wilson J [149] agreed with the judgment of Gibbs CJ. Mason J [150] agreed that, for the reasons given by the Chief Justice, in consequence of the abolition by the NSW Act of the common law rule that the cause of action against joint tortfeasors merged in the first judgment recovered, separate judgments, differing in amounts, might be recovered on the same occasion against co-defendants who were joint tortfeasors. Brennan J also agreed with the Chief Justice, adding [151] : The effect of s 5(1) [of the NSW Act] upon the joint and several liability of joint tortfeasors is far reaching, for the unity of the cause of action against all joint tortfeasors is severed by s 5(1)(a) and the resulting implications are not merely procedural. 1. (1985) 155 CLR 448. 2. XL Petroleum (1985) 155 CLR 448 at 455-456. It has been held in Victoria that an award of aggravated damages can be made against one only of several joint tortfeasors: Myer Stores Ltd v Soo [1991] 2 VR 597, esp at 605-610. 3. XL Petroleum (1985) 155 CLR 448 at 459-460. 4. XL Petroleum (1985) 155 CLR 448 at 465. 5. XL Petroleum (1985) 155 CLR 448 at 464. 6. XL Petroleum (1985) 155 CLR 448 at 465-466.

In Wah Tat Bank Ltd v Chan [152] , their Lordships had said:

It is, of course, a canon of construction that a statute should not be construed as altering the common law any further than it does so expressly or by necessary implication. It is, however, also a canon of construction that a statute should not be construed in such a way as to lead to injustice or absurdity unless its language makes no other course possible. Perhaps more to the point is the proposition that such canons of construction are not rules of law so much as aids in achieving the fundamental object of statutory construction. This is the ascertainment of the legislative intention by reference to considerations including the existing state of the law, other statutes in pari materia, and the mischief which one may discern the statute was intended to remedy [153] . These considerations also include the need for unmistakable and unambiguous language to interfere with important principles of government and of the rule of law [154] . The present is not such a case. 1. [1975] AC 507 at 517. 2. K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, 315; Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461 Cross, Statutory Interpretation, 3rd ed (1995), pp 50-59. 3. Coco v The Queen (1994) 179 CLR 427 at 435-438 Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 467

Once it has been determined, as it has been in this Court, that a necessary implication of a provision in the terms of s 11 of the Law Reform Act is that the unity of the cause of action against all joint tortfeasors is to be treated as severed, the answer to the present issue becomes apparent. This is that the common law, as it operates in the Territory with respect to the effect of the release of one of several joint tortfeasors, can no longer operate on the foundation that that which is the subject of the release is an indivisible unity. The existence of that indivisible unity is, as has been seen with particular reference to the reasoning in Duck v Mayeu , the ground upon which the remaining joint tortfeasors are treated as released. The present case thus is an example of the class of case referred to in this Court in Lamb v Cotogno [155] , namely the implied abrogation of a rule of law.

The result in the present case is to be contrasted with that in Lamb v Cotogno . The issue there was characterised by the Court as being whether a restriction was imposed upon the scope at common law of exemplary damages merely because that appeared to be a reasonable and desirable course in the light of the compulsory insurance provisions of the Motor Vehicles (Third Party Insurance) Act 1942 NSW. This statute said nothing about nor assumed any state of the law as to exemplary damages.

Lamb v Cotogno may be compared with the division of opinion in the House of Lords in Edwards v Porter [156] . The issue there concerned the effect of the provision in the Married Women's Property Act 1882 UK that married women were to be capable of suing or being sued as if each were a feme sole, the immediate issue being whether a husband remained liable at common law with his wife for a tort committed by her during joint coverture. In this Court it had previously been decided by Griffith CJ, O'Connor and Isaacs JJ that the liability of the husband was gone [157] . At common law the wife had been liable for her own torts but there was no way in which that liability could be enforced save by an action against her in which her spouse was joined as a party. The joinder of the husband was necessary only because the liability of the wife could not be made effective without his joinder as a party. The legislation [158] removed that procedural disability and therefore the reason which had rendered the husband a necessary party.

[1925] AC 1. 2. Brown v Holloway (1909) 10 CLR 89 3. In Brown v Holloway , the Married Women's Property Act 1890 Q.

In Edwards v Porter , without consideration of the reasoning of this Court in Brown v Holloway , their Lordships divided 3:2 in favour of a decision that, notwithstanding the legislation, the husband remained liable to suit with his wife for her torts [159] . One of the minority, Viscount Cave said [160] :

The whole reason and justification for joining a husband in an action against his wife for her post-nuptial tort has therefore disappeared; and it would seem to follow, upon the principle "cessante ratione cessat lex," that he is no longer a necessary or proper party to such an action. 1. Later, in Ford v Ford (1947) 73 CLR 524 at 528, Latham CJ expressed the opinion that, in accordance with the then prevailing doctrine in Piro v W Foster & Co Ltd (1943) 68 CLR 313, this Court would follow the House of Lords at the expense of its own earlier decision. In any event, legislation in all States and Territories ensured that married status has no effect on the rights and liabilities of a woman in tort: Balkin and Davis, Law of Torts, 2nd ed (1996), p 836. 2. Edwards v Porter [1925] AC 1 at 10

That maxim is to be treated with some caution [161] . I bear in mind also that in the course of his judgment as a member of the Court of Appeal in Bryanston Finance Ltd v de Vries [162] , Lord Diplock said that "[t]he technical common law doctrine of "release" is unaffected by the [UK] Act".

Lamb v Cotogno (1987) 164 CLR 1 at 11 Broom, A Selection of Legal Maxims, 10th ed (1939), pp 97-99. 2. [1975] QB 703 at 732.

Nevertheless, in my view, the proper conclusion is contrary to Lord Diplock's expression of opinion. The rationale identified by Wigmore for the treatment of jointly committed tortious activity as giving rise to an indivisible cause of action, namely difficulty to the plaintiff in proving to the tribunal of fact the respective contributions to the injury by the joint wrongdoers, may be conceded. However, that may be met otherwise than by continuing to treat the cause of action as unitary and indivisible in the sense identified above. The modern legislation in issue in this case deals with the subject on the footing that the unity of the cause of action against all joint tortfeasors is severed. That being so, the reason and justification for treating the release of one joint tortfeasor as a release of the others has disappeared.

An objection might be made to this construction of the Law Reform Act that it leads to a situation where there is a significant gap, namely the absence of a mechanism for contribution between joint tortfeasors where the party seeking contribution has satisfied the plaintiff, not pursuant to judgment recovered but upon a settlement accompanied by a release. However, there is no such deficiency in the regime established by the statute.

There have been varying legislative responses to the perceived need to displace the so-called rule in Merryweather v Nixan by a statutory regime for contribution between tortfeasors. In Tasmania [163] and Ireland [164] particular provision is made for the adjustment of statutory rights of contribution consequent upon the effective release of one of several joint tortfeasors [165] . The provisions as to contribution made in the Law Reform Act follow those as originally enacted in 1935 in the UK Act [166] . Sections 11(4) and 12 of the Law Reform Act deal as follows with contribution:

11.(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 is 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.

In proceedings for contribution under section 11 the amount of the contribution recoverable from a person is such as is found by the court to be just and equitable, having regard to the extent of that person's responsibility for the damage, and the court has power to exempt a person from liability to make contribution, or to direct that the contribution to be recovered from a person shall amount to a complete indemnity.

Section 3(3) of the Tortfeasors and Contributory Negligence Act 1954 Tas states: "A release of, or accord with, one joint tortfeasor granted or made by a person by whom damage is suffered - (a) does not discharge another joint tortfeasor unless the release so provides: and (b) relieves the joint tortfeasor to whom it is granted or with whom it is made from liability to make contribution to another joint tortfeasor, " 2. Civil Liability Act 1961 Ir, ss 17, 21. 3. See, generally, the proposals for legislative change of the release bar rule by the Ontario Law Reform Commission, Report on Contribution Among Wrongdoers and Contributory Negligence (1988), at p 2; Institute of Law Research and Reform of the University of Alberta, Contributory Negligence and Concurrent Wrongdoers, Report No 31 (1979), Recommendation 5; Law Reform Commission of Hong Kong, Report on the Law Relating to Contribution Between Wrongdoers (1984), Chs III, IV, V. 4. The UK Act was amended by the Civil Liability (Contribution) Act 1978 UK. This repeals (s 9(2)) s 6 of the UK Act, par (b) of sub-s (1) of which had limited the maximum amount of damages recoverable in subsequent proceedings. It extended (s 3) the abolition of the judgment bar rule from joint liability in tort to all causes of action for damages and debt. It did so by enabling the plaintiff who has obtained judgment against one defendant to sue "any other person who is (apart from any such bar) jointly liable with him in respect of the same debt or damage". Finally, the 1978 statute extended (s 4) to all actions brought successively against concurrent wrongdoers in respect of the same debt or damage, the prohibition in the 1935 statute (s 6(1)(b)) upon the award of costs in later litigation, in the absence of reasonable ground for bringing the later action.

Authority indicates that the phrase in s 11(4) "any other tort-feasor liable" includes a party whose liability has been ascertained upon a settlement whether or not reflected in a consent judgment, and that this is so whether or not in reaching the settlement the party now seeking contribution admitted liability. Nevertheless, the party seeking contribution after such a settlement must be prepared in that proceeding to establish that, if the claim had been fought out, that party would have been held responsible in law and liable to pay in whole or in part for the damage referred to in s 11(4). The decision of the English Court of Appeal in Stott v West Yorkshire Car Co [167] , which established these propositions with respect to the UK Act, has been followed in respect of Australian legislation deriving from it [168] . In New Zealand, the decision of the English Court of Appeal was anticipated by McGregor J in Baylis v Waugh [169] .

[1971] 2 QB 651. 2. Bakker v Joppich (1980) 25 SASR 468 at 472-473 John Holland v Jordin (1985) 36 NTR 1 at 11-12 Ballina Shire Council v Volk (1989) 18 NSWLR 1 at 10 3. [1962] NZLR 44; cf Re Securitibank Ltd [1986] 2 NZLR 280 at 288

Section 12 deals with the amount of contribution recoverable in the proceedings under s 11. It specifies this as that amount found by the court to be "just and equitable", having regard to the extent of the responsibility for the damage of the party against whom contribution is sought. The court is given a power to exempt a person from any liability to contribution and a power to direct that contribution in a particular case shall amount to a complete indemnity. Of the corresponding provision in the NSW Act, it was said in the joint judgment of this Court in Bitumen & Oil Refineries (Australia) Ltd v Commissioner for Government Transport [170] :

The Court, however, is required to find what is just and equitable as an amount of contribution having regard to the extent of the responsibility for the damage of the tortfeasor against whom the claim is made. There does not seem to be any valid reason why that tortfeasor may not say to the tortfeasor making the claim, if he has improvidently agreed to pay too large an amount or by unreasonable or negligent conduct in litigation has incurred or submitted to an excessive verdict, that the excess is due to his fault and not to that of the tortfeasor resisting the claim. It would be a matter for the Court to consider under the heading of "just and equitable". [171] (Emphasis added.) 1. (1995) 92 CLR 200 at 212-213. 2. See also Bakker v Joppich (1980) 25 SASR 468 at 474

Accordingly, upon its proper construction, the Law Reform Act establishes a regime creating and regulating a right of contribution between joint tortfeasors where contribution is sought consequent upon a release of the claimant for contribution.

It remains only to consider the notices of contention in which it is sought to establish that the Full Federal Court erred in holding that the defence of "innocent dissemination" was not available to Channel 7.

At a glance

Court

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Judgment (218 paragraphs)

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Cases Cited (27)