HER HONOUR: Antonio and Benjamin Zeccola claim damages for defamation in respect of the publication of an article in The Australian Financial Review in its printed edition and online. They sue the proprietor of the newspaper and the journalist who wrote the article but also Mr Rosen, formerly the chief executive officer of the Film Finance Corporation. Mr Rosen's liability is alleged to arise from the fact that, on the strength of the content of the matter complained of, it is apparent that he consented to be interviewed by the journalist, with certain quotes in the article being attributed to him.
The proceedings were commenced in 2009 and have suffered an unfortunate degree of delay. Most recently, the proceedings were relisted for argument in the defamation list on 6 July 2015. In accordance with what has been something of an acrimonious history of the litigation, there was on that occasion a dispute even as to why the proceedings had been relisted and what issues were to be determined.
Counsel for the plaintiff, Mr Evatt, had on a previous occasion asserted that it was he who had the proceedings relisted in order to have determined by the Court the issues appropriate for determination at the second listing in accordance with the Practice Note (SC CL 4). The defendants contended that the matter was before the Court for determination of their application to have the action as against Mr Rosen summarily dismissed. Ultimately it was, I think, common ground that the Court would have to determine the issue concerning Mr Rosen's status in the proceedings before proceeding to determine the second listing issues.
The application concerning Mr Rosen raises an interesting question as to the scope of what is sometimes referred to as Webb v Bloch liability (Webb v Bloch [1928] HCA 50; 41 CLR 331) and, in particular, whether liability on the strength of the principles stated in that case extends to a person who has consented (as Mr Rosen evidently did) to be interviewed and provided quotes for attribution in the context of a broader article.
Before proceeding to consider the principles relevant to the determination of that question, it is appropriate to deal with a threshold issue raised by Mr Rasmussen, who argued this application on behalf of the plaintiffs. Mr Rasmussen submitted, with some force, that the application is simply brought too late. He noted that the case as against Mr Rosen has been in the same form on the pleadings since 11 June 2010. A document optimistically headed "final statement of claim" filed in October 2012 pleads the action as against Mr Rosen in the following terms:
At all material times Rosen knew that Boland was a journalist who contributed articles to the First Defendant, and other media organisations for publication, and who wished to write, and offer for publication, an article about the plaintiffs.
In or about July 2009 Rosen spoke to Boland words of and concerning the plaintiffs, their financial position, conduct, activities and their relationship with the FFC [Film Finance Corporation], film producers and persons and entities connected with the film industry.
Mr Rasmussen noted that on 8 May 2013 the then Defamation List judge, Nicholas J, referred the proceedings for a special fixture and on that occasion a list in the nature of an agenda was handed up which included no reference to the defendants' current contention in respect of the action as against Mr Rosen. An amended or annotated version of that agenda relied upon when the proceedings came before me in the Defamation List in early 2014 similarly made no mention of any complaint as to the viability of the claim against Mr Rosen.
It was not until 4 April 2014 that the issue was squarely raised in correspondence by the defendants (see Exhibit 1). In that correspondence, the defendants referred to my judgment given in these proceedings in 2010: Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 415 at [24] to [25] where I said:
24 The confusion in the present case arises most acutely in respect of the claim against the second defendant, Mr Brian Rosen. Mr Rosen is described in the primary article as the former chief executive of the Film Finance Corporation. It emerged in argument that the basis on which Palace seeks to have him held liable as a publisher of the matters complained of is that he provided information to the journalist for the purpose of the primary article. The article includes three direct quotes attributed to Mr Rosen and other material that refers to him, but he is by no means the only source of information cited.
25 It is doubtful whether Mr Rosen's provision of some of the information used by the journalist in her composition of the primary article is enough to make him liable as a publisher of the article in its final form on the principles stated in Webb v Bloch. A claim might alternatively be brought on the basis that the primary article amounts to a republication of the words originally spoken by Mr Rosen to the journalist but that does not appear to be contended. The present pleading causes confusion as to how the claim is put.
Following the publication of that judgment the plaintiffs specifically elected to sue Mr Rosen as an original publisher of the whole of the matter complained of rather than on the basis of an allegation of republication, as recorded in a further judgment published later that year: Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1486 at [5].
In the letter dated 4 April 2014, the defendants invited the plaintiffs to discontinue the proceedings as against the second defendant and indicated that, if that was not done, they were instructed to bring an application that the proceedings against him be dismissed. Even so, it was not until this week that the application was, in fact, brought forward for the Court's determination. It appears that in the intervening period, following the publication of my judgment on 13 March 2014 in Zeccola v Fairfax Media Publications Pty Ltd [2014] NSWSC 227 striking out certain of the defendants' contextual imputations, the defendants have been concerned with the prosecution of an appeal against that judgment. The appeal has been heard but the decision remains reserved.
Mr Rasmussen submitted that the mandatory duties and considerations under the Civil Procedure Act 2005 (NSW) required that the present application be brought forward at an earlier point in time and that it simply ought not, at this late point, be entertained. Ultimately I concluded that, notwithstanding the force of that complaint, the application could not be dismissed peremptorily without considering its merit. If indeed it be the case that the proceedings are not fairly maintainable against Mr Rosen, I do not think the lateness of the application should discourage the Court from dismissing the action as against him. Rather, the matters raised by Mr Rasmussen seem to me to be more properly considerations sounding in costs.
I turn then to the merit of the defendants' application. It is helpful to begin with a consideration of some of the older authorities referred to in the well-known passage from the judgment of Isaacs J in Webb v Bloch in order to gain an understanding of precisely what principle that decision stands for. In 1846, in the English decision of The Queen v Cooper (1846) 8 QB 533, it was said by Lord Denman CJ at 536:
"If a man request another generally to write a libel, he must be answerable for any libel written in pursuance of his request: he contributes to a misdemeanour and is therefore responsible as principal. He takes his chance of what is to be published."
In that case, the parties held liable for a defamatory publication in a newspaper had expressly requested the editor of the newspaper to "shew K up" (at 533). The libel is reported (at 533) as having:
"imputed that the "myrmidons" of the prosecutor had poisoned some foxes, in the country hunted over by the hounds of Sir W.M. Stanley and had hung their bodies up by the neck; and that the tenantry of Sir W.M.Stanley, by way of retaliation, had hung up effigies of the prosecutor and his brother, with foxes' tails appended. Some comments were added, exhibiting the prosecutor in a ludicrous light with respect to those transactions".
Critical to an understanding of the basis on which liability was attributed in that case is the fact that there was a specific request by the defendants to the journalist or editor to publish the libel, combined with the fact that the libel was substantially that which had been communicated to the editor by those persons.
The next authority which warrants consideration is the decision of Parkes v Prescott (1869) LR. 4 EX. 169. That was a case with some similarity to The Queen v Cooper. In particular, two people had, at a meeting, expressly requested journalists to make a report of what was referred to as "this very scandalous case" concerning the plaintiff. The chairman of the meeting had called upon another participant of the meeting to tell the story and each had expressly invited the local press to take notice of the story, one saying, "I am glad gentlemen of the press are in the room and I hope they will take notice of it." The other had responded, "And so do I." The report of the decision states that the reporters (journalists) had given evidence at the trial that what was published in the newspaper was "a correct summary of what took place" at the meeting.
The trial judge directed the jury to enter a verdict for the defendants on the ground that there was insufficient evidence for their consideration of the publication of the libels by the two men who had attended the meeting. That was held by a majority of three to two to have been a misdirection, importantly in light of the following two considerations: first, the fact that there had been an express request at the meeting to publish the proceedings of the meeting relating to the plaintiff's conduct; and secondly, the evidence of the journalists that the reports contained a correct account of the proceedings "as the defendants meant it should appear".
Webb v Bloch is the Australian decision frequently cited as stating the extent of liability for participation in the publication of a libel, and those authorities are referred to in that decision. It is common in this jurisdiction for parties to cite portions of the judgment of Isaacs J in Webb v Bloch at 364 as the point in the judgment at which the relevant principle is stated. Interestingly, one of the passage of his Honour's judgment often cited is a quote from the report of Parkes v Prescott, but what is quoted is the argument of Giffard QC who, in turn, is quoting from the second edition of Starkie on Libel. In other words, one of the often-cited passages from Webb v Bloch is a passage from a text book cited in argument by Giffard QC in Parkes v Prescott.
That passage states:
"All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amendable for the act of publication when it has been so effected."
The import of that discrete statement must be understood in the context of what Parkes v Prescott decided, and also with regard to what Webb v Bloch decided. Webb v Bloch was, again, a case of publication at the request of the defendants. The defendants had instructed a solicitor to prepare the circular which was ultimately sued on. It may be accepted, as argued by Mr Rasmussen in the present case, that in the case of some of the defendants ultimately held liable for the publication of the circular, they had not even seen it in its final form. The relevant facts are set out at 355 of the judgment of the Chief Justice as follows:
The draft circular was sent by Norman to the defendant Bloch, and, so far as appears from the evidence, he was the only person who saw it. On 16th February 1926 the defendant Bloch telegraphed to Norman : " Issue circulars best way you think advisable forward us some copies." At a meeting of the Victorian Committee held on 22nd February Bloch reported what he had done with regard to the circular, and it was resolved that his action in instructing Norman to issue circulars be confirmed. At this time none of the defendants except Bloch had seen the circular or knew what it contained, but the defendant Crocker was supplied with a copy on the following day, and the defendant Pratt saw a copy on 23rd or 24th February 1926. It does not appear from the evidence that the defendant Murphy ever saw the circular.
However, what is significant about the facts of Webb v Bloch is that each of the defendants was a member of a committee that had condoned or joined in the instruction to the solicitor Nolan to issue the circular. Upon analysis, it can readily be seen that each of the decisions in The Queen v Cooper, Parkes v Prescott and Webb v Bloch is ultimately a decision turning on the principles of agency. What is critical to each case is the fact that there was a request to publish combined with the fact that what was ultimately published was either a correct account of what was requested to be published or was authorised without the defendants having or exercising the opportunity to confirm that it was a correct account.
It seems to me that those decisions can all readily be understood in accordance with ordinary principles of principal and agent. Can a person in the position of Mr Rosen, who has consented to be interviewed by a journalist and implicitly consented to have words spoken by him during the interview repeated in the body of an article with attribution, be held liable (without more) in accordance with the principles of Webb v Bloch? The answer may depend on the individual circumstances of the case. The critical question on the present application is whether the particulars pleaded against Mr Rosen are such as to reveal a reasonably arguable case on that basis.
I have already set out those parts of the final statement of claim which plead the case against Mr Rosen. Those pleadings assert little more than that Mr Rosen knew he was talking to a journalist who was going to write an article. There is nothing in what is currently pleaded to suggest anything coming within the principles, particularly the two elements to which I have referred, stated in Webb v Bloch.
Mr Rasmussen referred to a number of decisions which he submitted demonstrate that a person in the position of Mr Rosen can be held liable in accordance with Webb v Bloch principles. He referred first to the decision of Bongiorno J in De Jong v State of Victoria [2006] VSC 274. That was a case in which police had invited the media to attend the occasion of the first roadside testing station for the purpose of testing drivers for the presence of illicit drugs in their bodies. The hapless Mr De Jong appears to have been on the wrong end of a false-positive test carried out in the presence of the media on that occasion. According to the pleadings, police at the roadside station invited the media to attend; told them that a driver had tested positive to methylamphetamine; identified that driver as Mr De Jong and allowed a television crew to film various aspects of those events including pictures of Mr De Jong. That, in turn, was rebroadcast on the evening news.
The action was allowed to proceed as against the State of Victoria (alleged to be vicariously liable for the police). Justice Bongiorno cited Webb v Bloch as the authority for the proposition that the case was arguable. It is clear, upon analysis, that the case was capable of fitting within the principles to which I have referred. First, the plaintiff had pleaded an express request by police, or at least an invitation to them to attend to film the occasion of the roadside testing. Secondly (and perhaps more importantly in the context of the present case) it is clear that what was published was exactly in accordance with what police communicated to the journalists. As stated at [8] of the judgment, "The libel was that the plaintiff had driven a motor vehicle whilst affected by illegal drugs." Nothing in what was published in the ultimate broadcast varied from what police had invited journalists to film and report.
Mr Rasmussen also referred to the litigation brought by Mr Bracks. Mr Bracks first sued Mr Dunoon in respect of words he wrote separately as part of a circular distributed by Mr Smyth-Kirk. He later brought separate proceedings against Mr Smyth-Kirk. It is not necessary to recite the complexities faced by Mr Bracks in those two cases. It is enough to observe that, in my view, the decision does not stand as authority for the proposition that Mr Dunoon's liability demonstrates Mr Rosen's liability in the present proceedings in accordance with the principles stated in Webb v Bloch.
In particular, although it may be accepted that Mr Bracks sued Mr Dunoon in respect of a part only of the matter complained of, there was no judicial determination of Mr Dunoon's liability on that premise. Rather, as recorded in my judgment in Bracks v Smyth-Kirk [2008] NSWSC 930 at [16], the proceedings were settled out of court.
Mr Rasmussen also referred to my decision in Liu v The Age Company Limited [2012] NSWSC 12. That was an application for preliminary discovery. However, Mr Rasmussen submitted that, in ordering preliminary discovery, I accepted that Ms Liu may have a demonstrable claim against the sources who contributed part of the material relied upon by the journalist in newspaper articles subsequently published about Ms Liu. Upon revisiting the content of my judgment, particularly at [116] to [127], I do not think the decision in Liu assists the plaintiffs in the present case. It is clear, at least from [126] and [127], that the claim Ms Liu argued was demonstrable as against the sources was likely to be pleaded differently from the matter in which the plaintiffs had pleaded their cause of action against Mr Rosen. That is, she proposed to sue the sources for their original publication to the journalists, and perhaps also for republication.
Finally, I should note one point put by Mr Rasmussen with commendable ingenuity, which was that Mr Rosen's conduct of the litigation since being sued demonstrates something of his state of mind at the time he participated in the interview with the journalist. It may be accepted, as submitted by Mr Rasmussen, that there is authority for the proposition that a person's conduct after an event can shed light on their state of mind at the time of the event. Mr Rasmussen cited the judgment of Hunt J in Gross v Weston [2007] NSWCA 1 at [32] as authority for that proposition.
The argument was that Mr Rosen has contributed to the content of the defendants' requests for discovery in these proceedings. That is, that it can be seen from the categories of discovery that Mr Rosen has had some input and that that sheds some light on his intention at the time of his interview with the journalist, revealing that he must have intended at that time to conduce to the publication ultimately published.
As already noted, the argument was commendable for its ingenuity but I do not think Mr Rosen's participation in the conduct of the defence sheds any real light on his likely state of mind at the time of his interview with the journalist. Really, there is little more that the plaintiff can plead against Mr Rosen in the absence of interrogation or preliminary discovery than the matters set out in paras 9 and 10 of the final statement of claim (set out above).
I should finally make reference to one further decision relied upon by Mr Dawson, who argued this application for the defendants, and that is the decision in Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 QdR 156 at 194. As there observed, one has to be very careful about applying the principles stated in Webb v Bloch. It seems to me, as I think was meant by the Court in Thiess, that the quotes set out at 364 in the judgment of Isaacs J in Webb v Bloch have been elevated to the status of a broad principle often invoked without consideration of the circumstances in which they were cited. When one goes back to those circumstances it is plain, in my view, that the cases can be analysed by reference to the principles of agency to which I have referred.
Mr Dawson, who appeared for the defendants, submitted that the unfairness of holding liable, as a publisher, a person who has merely participated in an interview with a journalist in the course of the journalist's preparation for a broader article may be shown in the present case by reference to the breadth of some of the imputations, which plainly arise from material that has nothing to do with anything Mr Rosen said to the journalist. He referred in particular to imputations (o) and (p). That is a practical way of testing the principles to which I have already referred.
I have concluded that the matters set out in the final statement of claim are incapable of disclosing an arguable case against Mr Rosen on the principles stated in Webb v Bloch. It was suggested in written submissions that, if the Court were to reach that view, there should be an opportunity for the plaintiff to amend his claim against Mr Rosen so as to sue him for the original publication, that is, the words he said to the journalist, and to plead the republication relying on the newspaper article only as to damages. However, as noted by Mr Dawson, to proceed on that basis would face the same or similar difficulties as those faced by Dr Bateman in an application I determined recently in Bateman v Fairfax Media Publications Pty Ltd (No 4) [2015] NSWSC 610.
Most importantly, the original publication (that is, the words said by Mr Rosen to the journalist) would be well and truly statute-barred. For the reasons stated in Bateman (No 4), leave to amend should not be granted in those circumstances, since it is a separate publication and a separate cause of action. For those reasons, I have concluded that the proceedings as against Mr Rosen should be dismissed.
For the reasons explained at the outset of this judgment, however, I do not think Mr Rosen should have his costs of all of the proceedings. One of the submissions put by Mr Dawson was that the plaintiffs should have been in a position to plead the case properly against Mr Rosen since 2010, when I published my judgment in Palace Films Pty Ltd & Ors v Fairfax Media Publications Pty Ltd & Ors [2010] NSWSC 415. That decision was concerned with a different point but I did there make an observation as to the apparent weakness of the claim against Mr Rosen. The defendants relied upon that as an argument against the plaintiffs. It equally serves as an argument against the defendants. Notwithstanding what was set out in that judgment, no attempt was made to bring forward this application until after defences had been filed. Indeed, what is currently holding up the prosecution of the plaintiffs' claim is the defendants' application to the Court of Appeal for leave to appeal against my judgment dealing with the defences.
The considerations of the Civil Procedure Act ought to have conduced the defendants to bring forward the application, if it was to be brought forward at all, before defences were filed. For those reasons, I would accept, as submitted by Mr Rasmussen, that Mr Rosen should have his costs of the proceedings only after 4 April 2014, the date on which the present application was foreshadowed. In reaching that conclusion, I have assumed that Mr Rosen has been compensated for the costs of his successful earlier applications in which I have made costs orders in his favour. If that is not the case, that can be brought to my attention.
It remains to deal with the issues for the second listing. The defendants have served on the plaintiffs categories for discovery. However, those categories were plainly drawn before the promulgation of the Practice Note (SC CL 4). They do not have due regard to the sentiments of the Practice Note. Further, even leaving aside the Practice Note, many of the categories sought, in my view, are plainly draconian and would involve incurring disproportionate costs.
The appropriate direction, I think, is to fix the proceedings for a further second listing hearing and to direct the defendants to reconsider the categories presently proposed. Similarly, there was to be an argument as to the reply, but the proposed reply will have to be recast having regard to my determination in respect of Mr Rosen. That is also an issue that should be determined at a further second listing hearing.
I am mindful of the fact that the Court of Appeal has reserved its judgment in the appeal against my decision striking out two of the contextual imputations. Having regard to the considerable delay that the plaintiffs have already suffered in the prosecution of these claims, I think it would be appropriate for me, nonetheless, to continue down the path contemplated in the Practice Note for proceedings in this List. It will plainly be necessary to afford the defendants an opportunity to have a further second listing hearing in the event that the appeal is successful. In the meantime, the second listing hearing issues should be determined by reference to the existing pleadings.
ADDENDUM: The foregoing reasons were published orally on 8 July 2015. Following publication of the reasons but before orders were entered, Mr Rasmussen made an oral application to have the entry of the order dismissing the proceedings as against Mr Rosen stayed so as to enable the plaintiffs to bring three further applications, namely:
1. An application to amend the statement of claim so as to plead the original publication by Mr Rosen to the journalist;
2. An application for discovery by Mr Rosen;
3. An application for an order that Mr Rosen answer interrogatories.
Mr Dawson submitted that the Court should refuse to entertain any application to amend so as to plead the original publication by Mr Rosen to the journalist. He noted that, as recorded at [8] above, I recorded in an earlier judgment that the plaintiffs specifically elected in 2010 to sue Mr Rosen as an original publisher of the whole of the matter complained of rather than on the basis of an allegation of republication: see Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1486 at [5].
Mr Rasmussen responded by questioning the accuracy of what is recorded in that judgment. In the circumstances, having no independent recollection myself, I considered it appropriate to adjourn the application for a stay so that I could check the accuracy of that statement in the judgment against the transcript of the argument and so as to enable Mr Rasmussen to obtain instructions on that issue.
It was subsequently accepted on behalf of the plaintiffs that the judgment accurately records the information before the Court and that the information before the Court was accurate. The fact that the plaintiffs made a deliberate election almost five years ago not to pursue that discrete claim against Mr Rosen is a compelling reason for refusing to stay the order dismissing the proceedings against him pending a further application to amend the "final statement of claim".
In any event, as already noted, any such application would face the hurdles considered by me in similar circumstances in Bateman (No 4).
I apprehend part of the plaintiff's strategy in seeking a stay was to keep alive the entitlement to interrogate and obtain discovery from Mr Rosen. Mr Rasmussen submitted that, once he is out of the proceedings, the plaintiffs will have lost their opportunity to obtain evidence by compulsory process to support the matter of defeasance stated in s 31(4) of the Defamation Act 2005 (NSW) which is required to be proved to defeat the media defendants' defence of comment of a commentator. If documents held by Mr Rosen are relevant to that matter, they could properly be sought on subpoena. That is not the position as to interrogatories but, in any event, I do not think that is a proper basis for keeping a party in the proceedings who is otherwise entitled to be let out.
For those reasons, when the matter came back before me last Friday to hear Mr Rasmussen further as to the matters identified above, I rejected the oral application for a stay and indicated that the orders proposed in the main body of this judgment would be entered.
[2]
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Decision last updated: 24 July 2015