Belan v Casey - [2003] NSWSC 159

No judgment structure available for this case.

Reported Decision:
57 NSWLR 670

Supreme Court

CITATION: Belan v Casey [2003] NSWSC 159

HEARING DATE(S): 4/3/03-6/3/03

JUDGMENT DATE:
2 May 2003

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Application for contribution between tortfeasors jointly and severally liable to pay a judgment dismissed, on basis that; (a) no right of contribution at law existed; (b) any statutory right of contribution is statute barred; (c) for all except $23,813.12, funding, by people other than the plaintiff, of payment of judgment debt meant rationale for equitable contribution did not exist; (d) even if an equity of contribution now existed between joint tortfeasors (a matter expressly not decided) it would be statute barred by analogy.

CATCHWORDS: EQUITY - equitable contribution - requirement for plaintiff to have actually paid or to be about to be required to pay more than his/her share - contribution dependent on matters of substance not technicality - contribution not available when plaintiff in substance not worse off through circumstances of discharge of liability - EQUITY - equitable contribution - whether now available between joint tortfeasors - EQUITY - limitation of action - application of statutes by analogy - TORTS - THE LAW OF TORTS GENERALLY - joint or several tortfeasors - basis for contribution between joint tortfeasors - whether common law action now available for contribution between joint tortfeasors - LIMITATION OF ACTIONS - contribution between tortfeasors - application of limitation period by analogy if equitable right of contribution were available between tortfeasors - CONTRACTS - whether contract entered in particular circumstances - no consideration of principle - ESTOPPEL - whether estoppel exists in particular circumstances - no consideration of principle

LEGISLATION CITED: Defamation Act 1974
Law Reform (Miscellaneous Provisions) Act 1946
Limitation Act 1969
Mercantile Law Amendment Act 1856
Motor Vehicles (Third Party Insurance) Act 1942
Municipal Corporation Reform Act 1835
Trade Practices Act 1974 (Cth)

CASES CITED: Adamson v Jarvis (1827) 4 Bing 66; 130 ER 693
Adcock v Aarons (1903) 5 WALR 140
Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342
Arnold v Clifford (1835) 2 Sumner 238
Attorney General v Wilson (1840) Cr & Ph 1; 41 ER 389
Austral Pacific Group Limited (in liquidation) v Airservices Australia (2000) 203 CLR 136
Australian Breeders Co-operative Society Ltd v Jones (1997) 150 ALR 488
Bailey v Bailey (1884) 13 QBD 855
Betts v Gibbins (1834) 2 Ad E 37; 111 ER 22
Bonner v Tottenham & Edmonton Permanent Investment Building Society [1899] 1 QB 161
Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213
Burke v LFOT Pty Ltd [2002] HCA 17; (2002) 76 ALJR 749
Cia de Seguros Imperio v Heath (REBX) Ltd [2001] 1 WLR 112
Cockburn v GIO Finance Ltd (No.2) (2001) 51 NSWLR 624
Colburn v Patmore (1834) 1 CM&R 73; 149 ER 999
Coulthard v Disco Mix Club Ltd (2000) 1 WLR 707
Dall v The Blue Wren Taxi Co Pty Ltd [1926] VLR 365
Davenport v Commissioner for Railways (1953) 53 SR (NSW) 552
Dering v Earl of Winchelsea (1787) 1 Cox 318; 29 ER 1184
Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473
Genders v Government Insurance Office of NSW (1959) 102 CLR 363
Grant v Easton (1883) 13 QBD 302
James Hardie & Coy Pty Limited v Seltsam Pty Limited (1998) 196 CLR 53
Jones v Mortgage Acceptance Nominees Ltd (1996) 63 FCR 418; (1996) 142 ALR 561
Knox v Gye (1872) LR5HL
Re: La Rosa; ex parte Norgard v Rodpat Nominees Pty Ltd (1991) 31 FCR 83
Lingard v Bromley (1812) 1 V & B 114; 35 ER 45
London Association for Protection of Trade v Greenlands Limited [1916] 2 AC 15
Mahoney v McManus (1981) 180 CLR 370
Merryweather v Nixan (1799) 8 TR 186; 101 ER 1337
Moscati v Lawson (1835) 7 Car P 32; 173 ER 14
Palmer v Wick and Pultneytown Steam Shipping Company Limited [1894] AC 318
Pearson v Skelton (1836) 1 MW 504; 150 ER 533
R v Holbrook (1878) 4 QBD 42
R v McNeil (1922) 31 CLR 76
Shackell v Rosier (1836) 2 Bing (NC) 635; 132 ER 245
Sir Will. Harbert's Case (1584) 3 CoRep 11b; 76 ER 647
Sky Channel v Tszyu [2000] NSWSC 838
In Re Snowdon; ex parte Snowdon (1881) 17 Ch D 44
State of Victoria v Hansen [1960] VR 582
The Englishman and The Australia [1895] P 212
Trade Practices Commission v Manfal Pty Ltd (No.3) (1991) 33 FCR 382
W H Smith & Son v Clinton (1908) 99 LT 840
Wolmershausen v Gullick [1893] 2 Ch 514
Wooley v Batte (1826) 2 Car P 417; 172 ER

PARTIES :
Derrick Belan - First Plaintiff
Nicholas Belan - Second Plaintiff
(as Executors of the Estate of the Late Frank Belan)
Arthur Casey - Defendant

FILE NUMBER(S): SC 3909/01

COUNSEL: L J Aitken - Plaintiffs
M Dulhunty - Defendant

SOLICITORS: Maurice May & Co - Plaintiffs
R L Whyburn & Associates - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

2 MAY 2003

3909/01 DERRICK BELAN & ANOR (As Executors of the Estate of the Late Frank Belan) v ARTHUR CASEY

JUDGMENT

HIS HONOUR:

Nature of this Case

1 The plaintiffs are the executors of the Late Mr Frank Belan (“Mr Belan”). Mr Belan and the defendant in this action, Mr Arthur Casey (“Mr Casey”), were the defendants in two defamation actions. Mr Belan and Mr Casey lost those actions, and were ordered to pay damages, and costs. The damages and costs have now been paid. Mr Casey paid no part of them. By these proceedings, the plaintiffs seek contribution from Mr Casey towards the amount of the damages, the costs, and some fees which were paid to a costs consultant for assistance in assessing the quantum of costs payable. The plaintiffs’ pleading says that contribution is sought pursuant to section 5 of the Law Reform (Miscellaneous Provisions) Act 1946, at law, and in equity.

Background to the Defamation Actions

2 The circumstances in which the defamation actions came to be brought bear upon the probabilities of some of the disputed issues in this litigation. Mr Casey submits that they also bear upon what proportions of the judgment should be borne by himself and Mr Belan respectively, if an order for contribution were to be made.

3 In 1990 discussions began for the amalgamation of five industrial unions. One of those unions was the Federated Storemen and Packers’ Union of Australia, New South Wales Branch, known as the “Storemen and Packers’ Union”. Another was the Federated Millers and Manufacturing Grocers Employees’ Association of Australasia, New South Wales Branch, known as the “Millers Union”. Mr Belan was the State Secretary of the Storemen and Packers’ Union. Mr Edward Palmer (“Mr Palmer”) was Secretary of the Millers Union. Mr Denis Boner (“Mr Boner”) was the Assistant Secretary of the Millers Union.

4 In 1992 the amalgamation of the unions occurred, resulting in a new union known as the National Union of Workers (“NUW”). The rules of the Millers Union had made provision for certain officials, on retiring or removal from office, to be granted three weeks holiday at their current rate of salary for each completed year of service. There was no provision, in the terms upon which it had been agreed that the amalgamation of the unions would proceed, for that benefit to be carried forward to become the responsibility of the new union. Before it went out of existence, the Millers Union paid to Mr Palmer and Mr Boner the amount of this retiring allowance, together with payment for long service leave which they had accrued. This was done in accordance with advice from the solicitor of the Millers Union, and resolutions of the Executive of the Millers Union.

5 The NUW was divided into Divisions, one of which was known as the Food 1 Division. Former members of the Millers Union became members of the Food 1 Division. Upon amalgamation, Mr Palmer was made the Secretary of that Division, and Mr Boner was made an Organiser. Mr Belan became Secretary of the new union.

6 In September 1992 Mr Belan expressed concern to Mr Palmer that the payments had been made to the former officials of the Millers Union. In October 1992 solicitors advised the NUW that officers of the former Millers Union were not entitled to these payments. Mr Belan wrote to officers of the former Millers Union, including Messrs Palmer and Boner, requiring that the retiring allowance be reimbursed. On 28 October 1992 the Committee of Management of the NUW resolved to charge Messrs Palmer and Boner and one other former officer of the Millers Union. Those charges related, broadly, to breaches of the rules of the NUW in failing to carry out directions of the State Secretary to refund the money, failing to comply with directions of the Committee of Management to refund the money, and misappropriation of the funds of the Union. On 30 October 1992 Mr Belan wrote to Messrs Palmer and Boner saying that, pending the hearing of the charges, they were relieved from all official duties. This happened notwithstanding that Messrs Palmer and Boner had obtained written advice from Senior Counsel that the payments were justified, and made a copy of that advice available to Mr Belan.

7 On 3 November 1992 Messrs Palmer and Boner began proceedings in the Industrial Court of New South Wales, seeking orders restraining the Committee of Management (including Mr Belan) from proceeding to hear the charges. Hill J heard that application over several days. He reserved judgment. Judgment was delivered on 28 June 1993. He held that Messrs Palmer and Boner were entitled to the retirement allowances. He also held that participation in the hearing of the charges of people who had been involved in passing of the resolution requiring repayment of the money would deny procedural fairness to Messrs Palmer and Boner, and that the procedure which the NUW adopted, of taking punitive action under the rules, rather than suing to recover the money it thought had been incorrectly paid, was not fair or reasonable. Hill J ordered that the respondents to the application pay the costs of Messrs Palmer and Boner, on an indemnity basis. On appeal against that costs order, the Full Court of the Industrial Court of New South Wales in late 1993 upheld it, the Full Court saying:

“… the decision by his Honour to award costs on an indemnity basis as against Mr Belan was not only open to him, but was also correct.”

8 In August 1994 the NUW held an election. It was contested. One group of candidates was known as the Frank Belan Team. It included Mr Belan (who was standing for the position of Secretary) and Mr Casey. Mr Casey was standing, in opposition to Mr Palmer, for the position of Secretary of the Food 1 Division. Mr Boner was also a candidate in the same election, seeking election as an Organiser. The Frank Belan Team included an alternative candidate for that position.

9 In the course of the election campaign the Frank Belan Team campaign office sent, to 5,000 members of the Food 1 Division, an envelope containing two pieces of paper. One of those pieces of paper was a letter from Mr Belan. The other was a leaflet. Both the letter, and the leaflet, made various remarks about the circumstances in which Mr Palmer and Mr Boner had received money from the Millers Union. The letter urged recipients to support Mr Casey in the election. The leaflet urged support for both Mr Casey and the Frank Belan Team.

10 In 1994 Mr Palmer and Mr Boner brought defamation actions against Mr Belan and Mr Casey. Mr Palmer brought two actions. One of them was against Mr Belan alone, and related only to the publication of the letter. The other was against both Mr Belan and Mr Casey, and related to the publication of the leaflet. Mr Boner brought one action, which was against Mr Belan and Mr Casey, and related only to the leaflet.

11 Mr Belan informed the NUW Branch Committee of Management in 1994 of the commencement of the defamation actions. He told the meeting that the actions were an attack upon the Union, not himself or Mr Casey personally, and that they needed the assistance of the Union to defend it. It was not uncommon for the Union to meet expenses connected with litigation which arose from union affairs. Mr John Whelan, who was an officer of NUW in 1994, gives evidence that the defamation action against Mr Belan and Mr Casey came to his attention in 1994:

“There were a lot of discussions as to how we could help these people. I can recall attending a meeting and we all accepted the fact that they were our fellow unionists and fellow officers, and we had to do something to help them should they get involved in some legal argument or charges, or whatever. So that is the environment, but I can say this, that there was a very strong intention to help the late Frank Belan and Arthur Casey in any difficulty that they were having.”

12 As the defamation cases progressed, they were reported on occasionally to meetings of Union officials. On 19 June 1995 at a meeting of Branch Officers of the NUW the minutes record legal advice that “we should counter sue”, and record some suggestions as to how evidence could be collected. The minutes of the NSW Branch Committee of Management held on 3 June 1996 record:

“Ongoing defamation case against Frank Belan and Arthur Casey by Denis Boner and Ted Palmer will go ahead in October/November. Arthur Casey supplemented the report, with a discussion following. Chris Innes offered Frank and Arthur his support and commented that he felt sure the other officials would offer support also. Frank Belan will be talking to a number of other solicitors, seeking their collective opinions.”

13 In April 1997 Maurice May & Co, solicitors, came to be instructed for Messrs Belan and Casey in the defamation cases. Other solicitors had handled the matter up to that time. The file at Maurice May & Co was opened in the name of “National Union of Workers NSW Branch”. Mr Casey gives evidence that at that time,

‘if you refuse to sign it you haven’t got a job here.

Q. What happened then?

A. I signed it.”

14 On several occasions before the hearing of the defamation case Mr Belan said to NUW officials, including to Mr Casey, that if the case was lost he would sell his house. Mr Casey told Mr Belan he had no assets to sell.

15 In July 1997 fees of $850 were paid from the Union funds, to a barrister who had done some work on interlocutory matters concerning the case.

16 On 23 December 1998 Mr Palmer and Mr Boner made offers to compromise the defamation litigation. Mr Palmer offered to compromise the action he had against both Mr Belan and Mr Casey for $15,000 plus costs, while Mr Boner offered to compromise the action he had against both Mr Belan and Mr Casey for $20,000 plus costs. Those offers were not accepted, predominantly because Mr Belan did not want to accept them.

17 The three defamation actions were heard together. The trial occurred before Kirby J, in the Common Law Division of this Court, over six hearing days commencing on 1 February 1999. At the trial, Mr Belan and Mr Casey were represented by the one set of counsel and solicitors.

Kirby J’s Judgment in the Defamation Actions

18 Kirby J delivered judgment on 12 March 1999. Each plaintiff was successful. In the action brought by Mr Palmer against Mr Belan alone, there was a verdict for the plaintiff in the sum of $25,000 plus costs. In the action brought by Mr Palmer against Mr Belan and Mr Casey, there was a verdict for the plaintiff against both defendants, jointly and severally, for $65,000 plus costs. In the action brought by Mr Boner against Mr Belan and Mr Casey, there was a verdict for the plaintiff against both defendants, jointly and severally, in the sum of $75,000 plus costs.

19 Kirby J found that the following imputations arose from the publication of the letter.

(a) Mr Palmer deliberately and dishonestly misappropriated union monies

(b) Mr Palmer to hide his misappropriation of union monies deliberately and falsely implicated an innocent person as being responsible for the misappropriation of union money

“Belan Set Me Up”

20 Kirby J found that the leaflet contained the following defamatory imputations, concerning each of Mr Palmer and Mr Boner:

“(a) the plaintiff as a union official stole money from his union

(b) the plaintiff deliberately commenced court action to stop his stealing of union funds being detected

(c) the plaintiff to hide his stealing of union funds deliberately and falsely implicated an innocent person as being responsible for such stealing of union funds.”

21 Kirby J held that Mr Belan had published both the letter and the leaflet, and that Mr Casey had published the leaflet. His Honour found, at [113]

“… Mr Belan acknowledged his responsibility for the dissemination of both the letter and leaflet … . They were shown to him. He read them. He gave his approval. He signed the letter. It was his expectation that they would be distributed to members of the Food 1 Division.”

22 His Honour found that Mr Casey had published the leaflet because both documents had been given to Mr Belan by Mr Casey ([118]-[119]), and also because Mr Casey consented, in a more general way, to Mr Belan putting out brochures on behalf of the Frank Belan Team that would protect Mr Casey’s position.

23 Kirby J rejected a defence that in the circumstances of publication on the matter complained of, the person defamed was not likely to suffer harm. He found that there was qualified privilege at common law, arising from the publication having been made in the course of a Union election and as a response to an attack. He found that qualified privilege under section 22 of the Defamation Act 1974 was not made out. His Honour regarded as sufficient to reject that defence that the element of section 22 requiring that “the conduct of the publisher in publishing that matter is reasonable in the circumstances” had not been made out. The reasons his Honour gave (at [165]-[169] of his judgment) differed as between Mr Belan and Mr Casey, but those differences are not material for present purposes.

24 Kirby J also rejected a defence of comment for two reasons - that various aspects of the publications were not true (and therefore any comment was not based on proper material for comment), and that each defendant had stated, in answers to interrogatories that he did not intend to convey the imputations which Kirby J held were in fact conveyed by the document. Thus, all defences raised were not made out, except qualified privilege at common law.

25 Notwithstanding Kirby J’s finding that qualified privilege at common law was established, Mr Belan and Mr Casey failed in the actions because Kirby J found that they were actuated by malice. The way in which the malice was established was different for Mr Belan to the way it was established for Mr Casey. His Honour found that Mr Belan lacked an honest belief in the truth of a number of statements in the publications ([210]-[220]).

“In publishing the material with these falsehoods, he was actuated by malice. He wished to harm the electoral prospects of Messrs Palmer and Boner, and, thereby, enhance his own, and those of Mr Casey.”

26 Concerning Mr Casey, Kirby J said that, at [221]:

“Mr Casey was differently placed to Mr Belan. He had not lived through the court case before Hill J nor the appeal. His knowledge, therefore, was incomplete compared to that of Mr Belan. Indeed, his knowledge concerning the retirement benefits and court case substantially derived from Mr Belan … .

He had been made a member of the Frank Belan Team. He was the candidate nominated by the Team in opposition to Mr Palmer. He was a young man, entering union politics. He had previously been a delegate. Mr Belan, the leader of the Team, was a seasoned union official. He plainly dominated Mr Casey. Mr Casey nonetheless, was the beneficiary of the attack made by [the leaflet] upon Mr Palmer.”

27 His Honour held that:

“Mr Casey published [the leaflet] recklessly. He neither considered, nor really cared, whether it was true or false.” [226]

28 His Honour went on, at [227]:

“It was submitted by the defendants that it was not open to infer an absence of honest belief in the material published, since neither defendant was cross examined upon that basis. The cross examination was confined to the sources of their knowledge, which is a different issue. No doubt it would have been helpful to me had Mr Belan been cross examined as to his beliefs. It may have been fairer to have done so. Nonetheless, I believe that the issue was sufficiently raised in the documentary material which was tendered, without objection, and especially the judgments of the Industrial Court. I believe that the findings that I have made, therefore, are appropriate.”

29 His Honour also held that there was malice arising from Mr Belan, in the contest of Mr Palmer and Mr Boner having stood for election in opposition to his candidates, having chosen,

“to publish documents which he knew to contain falsehoods, and which he intended would damage their reputations. That was his dominant purpose. He was not, in short, seeking to put before the electors the truth as he saw it.” [244]

30 Concerning Mr Casey, Kirby J found that there was no evidence of malice, in the sense of personal spite. However because Mr Casey was prepared to allow Mr Belan to publish brochures on his behalf, Kirby J held that Mr Casey was visited with Mr Belan’s malice.

31 The reasons for judgment of Kirby J were tendered before me without objection.

Events Soon After Kirby J’s Judgment

32 Immediately after Kirby J delivered judgment in the defamation action on 12 March 1999, another aspect of the internal politics of the NUW came into play. There had been longstanding animosity between the New South Wales Branch of the Union and Mr Belan, on the one hand, and the National office of the NUW and its general secretary, Mr Greg Sword, on the other hand. On the same day that Kirby J handed down his judgment, Mr Sword wrote to the New South Wales Branch Committee Members saying:

“It is my understanding that the Supreme Court today, Friday 12 March 1999 awarded damages of $90,000 to Ted Palmer and $75,000 to Denis Boner arising from defamation proceedings brought against Frank Belan and Arthur Casey. It is also my understanding that costs were awarded again Frank Belan and Arthur Casey.

You are aware that the National Committee of Management has passed a resolution in the following terms:

“That the NSW Branch, each officer of the Branch, the NSW Branch Committee of Management and each member of it is directed not to authorise or pay or take any steps to enable the authorisation or payment of any funds of the Union including any Branch funds either directly or by loan, grant, donation or on an indemnity basis towards any costs or damages arising from the defamation litigation brought against Frank Belan and Arthur Casey by former NUW officials Ted Palmer and Denis Boner.”

I remind you that this resolution is required to be observed. It is also my view that independent of the resolution of the National Committee of Management the expenditure of any Union funds in this matter would not be a proper or valid use of Union funds (including the State Union).

Accordingly I seek an undertaking from you that the resolution will be observed and that no funds of the Union will be used as proscribed by the resolution. This undertaking should be supplied to me by close of business on Tuesday 16 March 1999. In the event that no undertaking is provided by close of business on Tuesday 16 March 1999, you are on notice that I will take all steps necessary to protect the funds and assets of the Union. Any officer of the Union who may be found to be responsible for any misuse of Union funds will be held accountable to the full extent of the law.

Please contact me should you require any further information.

Yours fraternally,”

33 On 23 March 1999 there was a special Branch Committee of Management meeting of the NSW Branch of the NUW. After referring to Mr Sword’s letter of 12 March, and a further letter of 17 March 1999 in which Mr Sword “referred to the 1992 s.202 agreement, clause 8 of which says that the funds of the NSW Branch of the Union and of the NUW registered organisation are held jointly” records that “Frank Belan is under instructions from lawyers to write to General Secretary Sword advising him as Branch Secretary that he will not use Union funds to pay for the abovementioned costs.” (The Union members repeatedly use the word “costs” to refer to both the amount of the verdict, and the amount of the legal costs.) A resolution was passed that:

“The Committee of Management of the National Union of Workers, New South Wales Branch and each member of it resolves not to authorise or pay or take any steps to enable the authorisation or payment of any funds of the Union either directly or by loan, grant, donation or on an indemnity basis towards any costs or damages arising from the defamation litigation brought against Frank Belan and Arthur Casey by former NUW officials Ted Palmer and Denis Boner.”

34 On 29 March 1999 written advice was received from counsel who had appeared at the defamation hearing for Messrs Belan and Casey, concerning the prospects of appeal. The only avenue of appeal which counsel saw as being available concerned the finding of malice. He saw some scope for complaint about the way in which the central issues on malice were not raised with the defendants in cross-examination. However, Counsel said:

“Given the numerous, and mostly incontrovertible factual issues on which the findings of malice against Mr Belan were made, it may in practical terms be difficult to show any prejudice to him in the way in which the plaintiffs’ case was conducted. But the basis of the findings of recklessness against Mr Casey may well have been altered if this precise question had been approached in cross-examination, and he had been given an opportunity to explain.”

“In short, then, I believe there is some prospect that an appeal on behalf of Mr Casey on the question of malice could succeed. If this happened, the most likely result is that the Court would declare his defence of qualified privilege to have succeeded. This result, however, would still leave Mr Belan liable for the whole damages awarded as the liability between him and Mr Casey is joint and several. (paragraph 295)

We could not, having to this point represented Mr Belan and Mr Casey together, conduct an appeal which might have such a consequence without specific written instructions, including acknowledgement of that possible consequence, from both Mr Belan and Mr Casey.”

35 On 9 April 1999 Maurice May & Co filed a Notice of Appeal, on behalf of both Mr Belan and Mr Casey. Later, Mr Casey engaged Hunt & Hunt as his own solicitors, to appeal against the decisions of Kirby J insofar as they related to him. Hunt & Hunt filed a Notice of Appeal on Mr Casey’s behalf on 8 July 1999.

Officials Donate The Campaign Fund and their Annual Leave

36 In the late 1980’s a bank account, called the “Campaign Fund”, which had a connection with the Union, had been established. It was referred to informally by the Union officials as the “slush fund”. There were at any time between 12 and 15 officials of the Union. Those officials contributed money from their wages each fortnight to that Fund. By 1999, most officials were putting in $50 per fortnight, though some contributed at the rate of $20 per fortnight. When the Fund was started the standard rate of contribution was $20 per fortnight. At some stage there was a move to increase the contributions to $50 per fortnight, but not all officials agreed, and those who did not agree continued to contribute at $20 per fortnight. Sometimes money was paid into the Campaign Fund as a result of fundraising activities which the officials at the time conducted – activities like putting on a lunch and charging people who attended. However, the bulk of the money in the Fund came from contributions from the officials. Sometimes if a contributor stopped being an employee of the Union he or she was paid back the amount still in the Fund representing his or her contributions; sometimes if an employee who had contributed to the Fund ceased being an employee, he or she did not ask for those contributions back. There were three signatories to the bank account, any two of whom could sign cheques on the Fund. Mr Belan was at all relevant times one of those signatories. There were no rules or guidelines concerning the operation of the Fund. Mrs Doreen Campbell, who was the President of the NSW Branch of the NUW from 1994, and remained President in 1999 gave evidence as follows:

“HH. Mrs Campbell, I got an impression, and I might be quite wrong about this and tell me if I am, that part of the thinking behind the campaign fund is that if the current team of officials in the union were to lose an election, they would be out of a job and therefore they have a personal interest in being re-elected and are prepared to put some of their own money on the line to assist in re-election. Is that an accurate position?

A. I think that is very accurate. When the campaign fund was originally set up, and in my previous evidence I have stated I was one of the people that started the fund, it was purely on a basis, in a previous organisation where I had worked, where we were challenged, there were many young males with families and if they were challenged in an election those people had commitments with families and homes, that they would not have money behind them to face an election because an election has to be paid out of the pockets of individuals not out of any union funds, of course.

So this strategy behind that is what you have put to me this morning, that the money was there, set up, accrued on the basis that if we were ever challenged, I guess, we would look after our own vested interests if we were challenged to fight a campaign.”

37 The 1994 election had been hotly contested, which resulted in the officials standing for re-election incurring a very large printing bill, which was not paid off until some time in 1995. From that time onwards, however, money had accumulated in the Campaign Fund.

38 Even though the purpose of the Campaign Fund was to provide money for meeting election challenges, it was sometimes used for other purposes, provided that a meeting of union officials approved. On one occasion, for example, it was used to provide money to an official who was having his car repossessed.

39 On 19 May 1999 there was a meeting of officials of the NSW Branch of the Union, held in the boardroom of the State Branch of the Union at Granville. They agreed that the Campaign Fund could be used to meet the verdicts. They felt that they were justified in using the Campaign Fund in this way, notwithstanding the resolution that union funds would not be used to pay for the defamation actions, because they had a common understanding and intention that the Campaign Fund belonged to the officials, not the union. Mr Derrick Belan (son of Mr Belan, one of his executors, a plaintiff in this action, and also an official of the NUW) gave evidence that:

“In that meeting we discussed how we were going to pay these monies as a group. We always had the view it was one for all, due to the fact that it came out of an election. Then we discussed the use of the Campaign Fund agreed by all officials. In that meeting my father said he would find a way to pay the money back.”

40 Mr Derrick Belan, when asked precisely what his father said, or what was said to him, gave evidence as follows:

He said, “Basically the decision has been made against me. If I have to sell my house, I will do that, to pay it”. He was told, “No, don’t do that. We are all in this together. It is out of an election. Let’s stick together and see if we can sort it out”. Mr Casey told us that he was going to appeal the decision. He was told by Mr Joseph that he would be on his own and he could not expect any help from the other officials. When asked why he wanted to appeal it, he said he did not want his children to know he had been found guilty of defamation. Arthur left the meeting and the officials continued the meeting with the discussion about the payment. We also discussed raising some fundraising activities to raise the money and get the money together.

41 As well, at a meeting of officials on 31 May 1999 a consensus emerged that the officials should each donate their pay for four weeks of accrued annual leave towards payment of the judgment. Mr Casey and Mr Derrick Belan walked around the boardroom table where all the officials were seated, and each official signed a leave application form. Mr Casey, along with the other union officials, gave up four weeks of leave pay in this way.

42 Mr David Meehan was an organiser with the NUW at the time. He gives evidence about these meetings as follows:

…

A. I think Frank might have given a report which explained the outcome of the defamation case and he explained that there was a sum of money that had to be paid. The term he used was “joint and several” and that was explained that it was for both of them.

Q. And have you ever been repaid your annual leave?

A. No, not that I am aware of.

Q. You personally, were you donating your annual leave to just Frank or to both Frank and Arthur?

A. I thought I was donating it to pay off the money. As I understood it there was a sum of money to be repaid and had to be paid off, and it was not something you split.”

43 Mr Meehan’s understanding of the outcome of the discussion was:

“I understood the monies would be to pay the money that Frank and Arthur owed for this defamation. I donated money to pay off the debt that Frank and Arthur owed as a result of the defamation. It was specifically for that.”

44 Mr Meehan said that he was not aware of any arrangement that was made whereby Mr Belan would borrow money to enable him to pay the judgment debt.

45 The evidence does not establish the precise amount which was raised by this donation of annual leave, or into which account it was paid. In light of evidence precisely identifying the sources of payments into the Frank Belan Defamation Defence Fund, discussed below, I would be inclined to infer that the annual leave was paid into the Campaign Fund, but this is not an inference made with great confidence.

46 Later on 31 May 1999 there was a meeting of the New South Wales Branch Committee of Management of NUW. The minutes of that meeting record the following:

“State Secretary reported that a copy of the Decision on the Defamation case [Boner & Palmer] is now available to anyone who would like a copy. The Decision went against Frank Belan and Arthur Casey at an approximate total cost of $300,000.00 and Frank reported that he is waiting for legal advice on whether the payments can be made in instalments.

Frank Belan referred to a report given at this morning’s Officers meeting, outlining appropriate methods of repaying the costs referred to above.

MOVED: By Joe Cruze that the State Secretary be given permission to transfer the equivalent of four weeks’ annual leave pay from each officers accrued annual leave in order to assist with the payment of the above costs, as decided by the officers at this morning’s meeting.

SECONDED: John Ivancic.

Arthur Casey raised the question of a possible separate appeal in relation to the costs awarded against him. However, Frank Belan stated that he considered that to be a personal matter and moved as follows:

MOVED: By Frank Belan that Arthur Casey’s report be removed from the Minutes.

SECONDED: Derrick Belan.

CARRIED UNANIMOUSLY.

John Cornwell and Wayne Meaney spoke in support of the above resolutions.”

47 The minutes show on their face, by the reference to Mr Casey’s report being removed, that they are not a full and accurate account of what happened at the meeting. Mr Casey’s evidence about that meeting, which I accept, is less bland:

The Frank Belan Defamation Defence Fund

48 On 9 June 1999 a statewide delegates meeting of the Union was held at the Auburn RSL Club on 9 June 1999. Four or five hundred people attended. The delegates are Union representatives at individual workplaces. Delegates are entitled to receive a commission of 10% of all fees which they collect on their site. That commission is paid to them on an annual basis. On 9 June 1999 (but, according to Mr Derrick Belan, after the delegates meeting had closed) the delegates passed a resolution:

“That delegates donate their commission and any other available finance to help pay for the legal costs associated with the defamation case involving Frank Belan.”

49 The pressure on the NSW Branch from Mr Sword continued. A combined Committee of Management, Officers and staff meeting of the NUW was held on 30 June 1999 to hear a report from Mr Belan on the dispute between the National office and the NSW Branch. The minutes record:

“Greg Sword would like to freeze the NSW funds and is looking for an opportunity to seek a court injunction. Legal advice sought by Frank Belan should be received in a day or two re s.202 agreement between National Office and the Branch.

Frank Belan stated that whether intentionally or otherwise, someone here is giving out information about what is happening within the NSW Branch. If Greg Sword takes over, not one person working for the NSW Branch at present would keep his/her job. It is in everyone’s interest to ensure that the NSW Branch does not collapse and its business should not be discussed with anyone. Frank also stated that he would protect the officers of the NSW Branch, but expects their loyalty.”

50 To give effect to the resolution passed on 9 June 1999, individual delegates each signed a standard form authority, addressed to the Secretary of the NUW, NSW Branch, saying:

“In accordance with the resolution carried by delegates at the State Wide Delegates meeting at Auburn RSL Club on Wednesday 9 June 1999, I being a delegate of the National Union of Workers, New South Wales Branch HEREBY AUTHORISE you to pay into a fund styled “Frank Belan Defamation Defence Fund” any commission on contributions that may be due to me.

This authority is to operate until it is revoked by me, or until such time as such contributions are no longer required.”

51 Union officials knew that Mr Sword would challenge this raising of funds if he could, and so legal advice had been sought about the drafting of the Authority to Pay. The aim was to ensure that it could not be said that funds of the Union had been used to pay the verdict and costs, but rather that individual delegates had voluntarily decided to make available money which they were personally entitled to receive.

52 On 20 September 1999 a new bank account was opened at the Commonwealth Bank, called the “Frank Belan Defamation Defence Fund”. It was opened on the bank form entitled “Authority for Unincorporated Clubs, Lodges and Society Accounts”. The postal address nominated on the form was 3-5 Bridge Street, Granville, which is the address at which the NUW had its offices. The section of the form entitled “Persons Authorised to Operate on Account/s” was filled out by entries including:

Name	FRANK BELAN
Official Position	STATE SECRETARY

The form continued:

Method of Operation
(Show method of operation eg Treasurer or one other to sign, any two to sign etc)
Only one to sign

Authority has been duly given by resolution passed at a legally constituted meeting of
N.U.W. NSW BRANCH
For the persons named, in accordance with the stated method of operation, on behalf of the said body to:

[there followed a list of types of dealing between Banker and Customer]

Authority has also been duly given by the same resolution for cheques, bills and promissory notes payable to the order of the said body and lodged for collection or for discount or negotiation and credit of proceed to its account’s with the Bank to be solely endorsed by any one of the persons authorised to operate on the Account/s. …

I certify that the resolution conferring the authorities herein contained has been passed in accordance with the Constitution, Rules or By-Laws of the said body presently in force.

53 Mr Belan signed the form twice, once in the place for “Signature of Chief Officer or Chairperson of (unincorporated) organisation”, and again in the place for “Signature of Chief Officer or Chairperson of (unincorporated) organisation who signed previous authority”. The opening deposit was made to the account on 20 September 1999, by paying in $2.00. Over the period from 21 September 1999 to 1 February 2001 other amounts totalling $125,938.88 were paid into that account. By far the largest deposits were a cheque for $97,964.24 paid into the account on 28 September 1999, and a deposit of $21,878.24 made to the account on 3 December 1999. The cheque for $97,964.24 deposited on 28 September 1999 was a cheque drawn on the bank account of the New South Wales Branch of the NUW. It represented the amount of commission which delegates had, up to that stage, agreed to donate. The deposit on 3 December 1999 of $21,878.24 included a cheque for $20,764.74 drawn on the New South Wales Branch of the NUW, which represented an additional amount of commission which delegates had donated.

54 Other amounts paid into the Fund are identified, in the accounting record kept concerning the Fund, as relating to particular numbered receipts. A sample of such a receipt is in evidence. It relates to an amount of $250 obtained from Union members at the Harris Coffee site. The receipt is headed “The Belan Team”. After acknowledging receipt of $250, it says “being for Frank Belan Defamation Fund”. Mr Casey describes the fundraising process as follows:

“… all state NUW officials … went around to the sites and collected contributions. Money was scrounged from everywhere to pay for the cases.”

“Frank Belan Defamation Defence Fund”

“That was explained to me very simply that Arthur Casey was a nobody and we could not galvanise to collect money for Arthur Casey so we had to use Frank as an icon of the Union to capture the money … I asked Frank on a number of occasions around that time whether or not this was to be paid for the defamation case and he said it was.”

55 As expected, Mr Sword and the federal body of the NUW challenged the assistance which had been given in paying the defamation verdict and costs from sources close to the Union’s State Branch. Those proceedings were settled in July 2000 by consent orders whereby the proceedings were dismissed in return for undertakings from officials of the State Branch that, broadly, Union funds would not be used for payment of the liabilities of the defamation proceedings, and that delegates’ commissions would be used for that purpose only in accordance with written authority and approval of the Branch Committee of Management. Mr Belan gave an undertaking that a sum of $61,000 would be deposited into the NUW New South Wales Branch general fund no later than Monday, 24 July 2000. The evidence does not disclose whether that undertaking was performed, or, if it was, from what source Mr Belan obtained the money.

Source of Money for Payment of Liabilities Arising from Defamation Action

56 The amounts payable to satisfy the judgment and costs orders, and other legal expenses connected with the defamation actions were paid as follows:

Date

Amount
Payee/butt entry Account drawn on

29 June 99
8500.00
T Molomby Campaign Fund

8 Jul 99
8500.00
T Molomby Campaign Fund

28 Sep 99
74,479.70
Edward Palmer Commonwealth Bank of Australia bank cheque

29 Sep 99
85,937.70
Denis Boner Commonwealth Bank of Australia bank cheque

30 Mar 00
31,620.00
W G McNally Frank Belan Defamation Defence Fund

30 Mar 00
700.00
Supreme Court of NSW Frank Belan Defamation Defence Fund

21 Mar 01
5,400.00
MM 6 months Campaign Fund

29 Mar 01
3,807.50
M May Campaign Fund

16 Aug 01
13,500.00
M May Campaign Fund

10 Apr 02
47,480.80
Iris Patricia Palmer Maurice May & Co trust account

57 “T Molomby” was the barrister who had appeared for Mr Belan and Mr Casey at the defamation trial.

58 The bank cheque for $74,479.70 payable to Mr Palmer was purchased by drawing $74,479.70 from the Campaign Fund bank account on 29 September 1999. The bank cheque payable to Mr Boner for $85,937.70 was purchased by drawing $85,937.70 from the bank account entitled “Frank Belan Defamation Defence Fund” on 29 September 1999.

59 “W G McNally” was the solicitor was had appeared for Mr Palmer and Mr Boner in the defamation action. The payment of $31,620 made to Mr McNally on 30 March 2000 was in payment of the costs of Mr Boner. The cheque for $700 payable to the Supreme Court, drawn on 30 March 2000, related to a filing fee for the Certificate as to Determination of Costs in the action brought by Mr Boner.

60 An assessment of the amount of costs payable to Mr Palmer did not issue until 22 December 2000. On 24 January 2001 Mr Palmer’s certificate of assessed costs was filed in the Local Court, resulting in a judgment for $33,263.12, inclusive of the costs of registration. An application was made to the Local Court to pay that judgment debt by instalments, and was successful. The cheque drawn on 21 March 2001 for $5,400, the butt of which is marked “MM 6 months” was a cheque made payable to Maurice May & Co for six months of those instalments. The cheque for $13,500 drawn on 16 August 2001 in favour of Maurice May & Co was a further payment of instalments of the judgment debt concerning Mr Palmer’s costs. The evidence does not make clear whether the costs of Mr Palmer which were being paid by instalments in this fashion were the costs in both actions which Mr Palmer had brought, or only the costs in the action which Mr Palmer had brought against both Mr Belan and Mr Casey.

61 The cheque for $3,807.50 made payable to Maurice May & Co on 29 March 2001 related to two invoices received from the Supreme Court which related to the defamation cases. The evidence does not establish whether they are part of the costs which were ordered to be paid, or whether they are part of the costs which Mr Belan and Mr Casey had to bear for running their own defence.

62 Iris Patricia Palmer is the widow of Mr Palmer. The cheque for $47,480.80 made payable to her on 10 April 2002 was in discharge of the amount remaining unpaid on the costs orders made in Mr Palmer’s favour in both of the actions which he brought. Of that amount of $47,480.80, $23,813.12 was in discharge of the costs order for which Mr Belan and Mr Casey were both liable; the balance was for the costs order for which Mr Belan alone was liable. Mr Belan had died on 3 October 2001. The funds to meet the cheque payable to Mrs Palmer came from money which Maurice May & Co were holding for the estate of Mr Belan.

63 The judgment which Mr Palmer had obtained against Mr Belan alone, was also paid on 29 September 1999. It was paid by a bank cheque for $28,645.50, which was purchased with a cheque in that same amount drawn on the Campaign Fund bank account on 28 September 1999.

64 A costs consultant was engaged to act in the interests of Mr Belan and Mr Casey in assessment of the costs payable pursuant to the orders of Kirby J. An amount of $2,100 was paid to the costs consultant concerning the action brought by Mr Palmer, and a further $1,700 was paid concerning the action brought by Mr Boner. Each of those amounts was paid using money from the Campaign Fund.

65 As Maurice May & Co had acted on a contingent fee basis in connection with the defamation actions, they did not ask for, or receive, any payment of costs for having acted for Mr Belan or Mr Casey in those actions.

66 On 10 May 2000 a cheque for $10,000 was drawn on the bank account of the Campaign Fund, made payable to the Commonwealth Bank. The butt bears an entry that it was “for W G McNally”. An employee of Mr May, who had responsibility for the day to day running of the defamation matters, recollects that there was a payment made when the appeal which was lodged against Kirby J’s judgment was discontinued, but is not sure whether that cheque is the amount which was paid. Given the purpose of the Campaign Fund, and the absence of evidence about any other reason why a payment should be made from the Campaign Fund to Mr McNally, I would conclude that the $10,000 probably was paid in connection with discontinuation of the appeal.

The Plaintiffs’ Claim in these Proceedings

67 The plaintiffs claim 50% of each of the following amounts.

Effect on Equitable Contribution of the Way in which the Judgment Debt was Discharged

68 It is a fundamental requirement for the availability of equitable contribution that the person claiming it has actually paid, or is about to be required to pay, an obligation from his own money.

69 The rationale of equitable contribution does not depend upon any implied contract but rather on “general principles of justice”: Dering v Earl of Winchelsea (1787) 1 Cox 318 at 321; 29 ER 1184 at 1185. In Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342 at 352 Kitto J said that the reason for contribution existing both at law and in equity is, “… that payment by the one discharges not only himself but each of the others, and qui sentit commodum sentire debet et onus.” (The Latin maxim translates as, “He who gains the advantage must also suffer the burden.”) That payment by the person claiming contribution has been made, or is imminent, is an essential part of this rationale.

70 In Mahoney v McManus (1981) 180 CLR 370 at 378, Gibbs CJ (with whom Murphy and Aickin JJ agreed) held that an equity of contribution existed when sureties and a principal debtor were all being pressed to pay a debt, one surety put the principal debtor in funds so that the debt could be paid and the principal debtor paid it. On any precise legal analysis, the surety had not paid the debt yet, even so, the payment made by the surety was regarded as a payment made “under” the guarantee, and a right of contribution was available from the other sureties because of it. Their Honours said:

“… the doctrine of contribution is based on the principle of natural justice that if several persons have a common obligation they should as between themselves contribute proportionately in satisfaction of that obligation. The operation of such a principle should not be defeated by too technical an approach to the question whether a surety has paid the creditor, when he has supplied moneys to the principal debtor for the purpose of making such payment.”

71 In Cockburn v GIO Finance Ltd (No.2) (2001) 51 NSWLR 624 at 631 Mason P (with whom Davies AJA and Ipp AJA agreed) said:

Bonner v Tottenham and Edmonton Permanent Investment Building Society

Armstrong v Commissioner of Stamp Duties

Mahoney v McManus

The right of contribution depends on matters of substance, not form.”

72 In Burke v LFOT Pty Ltd [2002] HCA 17; (2002) 76 ALJR 749 at [40] McHugh J said that since the decision of Dering v Earl of Winchelsea in 1787,

“It has never been doubted that the right of contribution depends upon matters of substance, not form.”

“an order of contribution prevents the injustice that would otherwise flow to the plaintiff by the defendant being enriched at the plaintiff’s expense in circumstances where they have a common obligation to meet the liability which the plaintiff has met or will have to meet.”

73 At [41] McHugh J, after identifying relationships traditionally regarded as giving rise to an order for contribution, said:

“a common interest and a common burthen”

Ellesmere Brewery Co v Cooper

“The basic rationale of the right to contribution was consequently lacking – the discharge by one co-obligor of its liability to the principal which discharged the liability of the other.”

74 The onus of establishing that the circumstances exist which warrant the making of an order for contribution is on the person who seeks such an order. Insofar as the verdicts and costs orders made against Mr Belan and Mr Casey were satisfied by payment from the Campaign Fund, I am not satisfied that the prerequisite for the existence of an equity of contribution, that Mr Belan has paid the verdict and costs from his own money, exists.

75 Insofar as the verdict and costs orders were paid from the Campaign Fund, they were paid with money at least most of which belonged, beneficially, to the current officials of the NUW. The only possible exception is that there is a possibility that the Campaign Fund might have contained some money of officials who had left, but not taken their contribution to the Campaign Fund with them. If that is so, those officials might have abandoned their interest in the Campaign Fund (in which case the continuing officials would have power to deal with it), or they might not have abandoned it (in which case they would retain their beneficial interests, their money would have been applied in payment of the judgment and costs without their consent, and both Mr Belan and Mr Casey would, subject to any statute of limitations, still be liable to reimburse them). Insofar as money belonging to continuing union officials, or over which the continuing union officials had a power of disposition, was spent in payment of the judgment and costs orders, those continuing union officials consented to its being spent in that way.

76 I am not satisfied that Mr Belan had any obligation to pay back, from his own funds, the amount of the Campaign Fund which was expended in this way. I accept that, when the question of using the Campaign Fund to pay the verdict and costs first arose, Mr Belan said that he would find a way to pay the money back – but I do not find that it was agreed that Mr Belan would be personally liable to reinstate the Campaign Fund. I am not satisfied that Mr Belan’s reference to paying the money back meant anything more than that he would see to it that money was raised to replace whatever was taken out of the Campaign Fund. I am not satisfied that either Mr Belan, or the officials he was talking to, regarded Mr Belan as thereby entering into any legal obligation. No demand has been made for any repayment to be made by him, or by his estate, and no such payment has in fact been made by him, or his estate, in the period of over three and one half years since the Campaign Fund was first used to pay expenses connected with the defamation cases. The evidence of Mr Meehan and Mrs Campbell is to the effect that the Campaign Fund was to be used for the purpose of paying off the judgment and costs, for the benefit of both Mr Belan and Mr Casey. I am not persuaded that any of the other union officials took a different view.

77 Mr Belan was one of the contributors to the Campaign Fund. To this extent, Mr Belan’s money would have been used in payment of verdict and costs. However, the amount in the Campaign Fund which was applied in payment of the verdict and costs was money which had accumulated over a period starting in 1995 (paragraph 37 above). During the whole of that time Mr Casey was a union official. The evidence did not try to prove in detail the contributions which Mr Belan and Mr Casey had respectively made to the Campaign Fund – but it was established that, on at least one occasion, deductions were made from Mr Casey’s pay at the rate of $50 per fortnight. To the extent to which money of Mr Belan was used when the Campaign Fund was expended in payment of the verdict and costs, the plaintiffs have not proved that a greater amount of Mr Belan’s money was used than the amount of Mr Casey’s money which was similarly used from the Campaign Fund.

78 Insofar as the judgment and costs were paid from the Frank Belan Defamation Defence Fund, they were paid from an account on which Mr Belan was the sole signatory. Mr Aitken, counsel for the plaintiffs, submitted that the correct way to approach payments from this account was to identify whose money was in the bank account. He submitted that the legal owner of the money was Mr Belan, because the bank owed the debt constituted by the account to Mr Belan. He submitted that the purpose, of paying off the verdict and costs, was not a charitable purpose, so even if the contributors to the fund gave their money on the basis that it would be used for that purpose, there is no valid trust which could have required Mr Belan to use the money for that purpose. There being no trust, and the legal owner of the money being Mr Belan, expenditure of money in the bank account is the same as expenditure of Mr Belan’s own money. Hence, he submits, the plaintiffs have a right of contribution concerning the payments of verdict and costs made from the Frank Belan Defamation Defence Fund.

79 That Mr Belan was the sole signatory of the account does not mean, however, that the money in the account can be treated for the purpose of the law concerning contribution in the same way as money in his personal bank account. The contributions to the Frank Belan Defamation Defence Fund were made by union delegates and other people on the basis that the money would be used to pay the verdict and costs. Those people were not making a gift to Mr Belan to be used as he pleased. Insofar as money in the Frank Belan Defamation Defence Fund was raised from delegates, those delegates were aware that the purpose of the fundraising was to pay off the verdict and costs, and that the verdict and costs had been awarded against both Mr Belan and Mr Casey. Insofar as contributions to the Frank Belan Defamation Defence Fund were from donations, the receipt for those donations was issued in the name of “the Belan Team”, not of Mr Belan personally and Mr Casey was a member of “the Belan Team”.

80 In all these circumstances, it is only in a very technical sense that it can be said that it is Mr Belan who has borne the burden of making the payment which has relieved Mr Casey. As a matter of substance (and it is substance which matters in deciding whether there is an equity of contribution, not form, or technicality), the payment of verdict and costs which was made from the Frank Belan Defamation Defence Fund was made by the contributors to that fund, not by Mr Belan. This is so even if there was no enforceable trust to require the money to be used for that purpose. The payment of verdict and costs from the Frank Belan Defamation Defence Fund was made in accordance with the intentions and authority of the contributors to the Fund. Mr Belan had no obligation to reimburse the contributors to the Fund. To the extent that the verdict and costs were paid from the proceeds of fundraising, Mr Belan is none the poorer in consequence of the verdict and judgment having been paid. Hence, it could not be said that Mr Casey has been unjustly enriched at the expense of Mr Belan, as a result of the verdict and costs having been paid, in part, from the Frank Belan Defamation Defence Fund. In all these circumstances, the rationale for the existence of an equity of contribution does not exist so far as the payments from the Frank Belan Defamation Defence Fund are concerned. In my view, no equity of contribution arises by virtue of the payments which were made from the Frank Belan Defamation Defence Fund.

81 It follows that it is only to the extent of the $23,813.12 which was paid from funds belonging to the Estate of Mr Belan (see paragraph 62 above) that an equity of contribution might possibly exist. Whether such an equity of contribution actually exists depends upon whether there is any reason arising from the rule in Merryweather v Nixan (1799) 8 TR 186; 101 ER 533 why such an equity of contribution should not exist, and on whether any claim for contribution has been made too late to be enforceable. I now turn to these matters, and to whether contribution can be claimed on any basis other than equitable contribution.

The Limitation Argument

82 Mr Casey claims that the present proceedings are statute barred. There had been no cross-claim brought by Mr Belan against Mr Casey, in the proceedings before Kirby J, seeking contribution. To draw together the dates relevant to the limitation argument, the defamatory publications which were the foundation of Kirby J’s judgment, were made in the latter part of 1994. Kirby J gave his judgment on 12 March 1999. These present proceedings were begun on 8 August 2001. Mr Casey was served with the proceedings when he was in the second week of new employment he had entered, working for Mr Sword’s team at the National body of the NUW.

83 The following provisions of the Limitation Act 1969 are relevant:

“9. Nothing in this Act affects the rules of equity concerning the refusal of relief on the ground of laches acquiescence or otherwise. …

14(1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims:

(2) This section does not apply to: …

(b) a cause of action for contribution to which section 26 applies

17(1) An action on a cause of action on a judgment is not maintainable if brought after the expiration of a limitation period of twelve years running from the date on which the judgment first becomes enforceable by the plaintiff or by a person through whom the plaintiff claims.

Law Reform (Miscellaneous Provisions) Act 1946

(a) a limitation period of two years running from the date on which the cause of action for contribution first accrues to the plaintiff or to a person through whom the plaintiff claims, and

(2) For the purposes of paragraph (a) of subsection (1), the date on which a cause of action for contribution first accrues is:

(a) if the plaintiff in the action for contribution or a person through whom the plaintiff claims is liable in respect of the damage for which contribution is claimed by judgment in a civil action or by arbitral award---the date on which the judgment is given or the award is made, whether or not, in the case of a judgment, the judgment is afterwards varied as to quantum of damages, or

(3) In paragraph (b) of subsection (1), the expression "the limitation period for the principal cause of action" means the limitation period fixed by or under this Act or by or under any other enactment (including an enactment repealed or omitted by this Act) for the cause of action for the liability in respect of which contribution is sought.

Law Reform (Miscellaneous Provisions) Act 1946

84 Section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 says:

“(1) Where damage is suffered by any person as a result of tort (whether a crime or not) - …

(c) any tort-feasor liable in respect of that 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, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought.

(2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be 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 shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.

85 Upon its true construction, section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 does not make available to a defendant tort-feasor in an action for contribution any time limitation which would have been available to him in an action of tort brought against him by the injured party. In other words, paragraph (c) of section 5(1) should be read without the importation of any temporal element into it, or as if the words “at any time” were present after the words “if sued”: Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213. As Windeyer J put it in Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 at 221:

“… the statute of limitations does not begin to run in favour of a third party tort-feasor against whom a claim for contribution is made, until after the liability of the original tort-feasor has been ascertained; for it is only then that the right to contribution arises.”

86 Thus, the only limitation period which is relevant to a claim for contribution made under section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 is the limitation period arising under section 26 Limitation Act 1969.

87 In the present case, the statutory right of contribution which Mr Belan had under section 5 first accrued on the date Kirby J gave his judgment, 12 March 1999. As these proceedings were begun more than two years after that date, they are statute barred insofar as they seek contribution under section 5. That conclusion was not really argued against by counsel for the plaintiffs in these proceedings. Rather, he submitted that there is a cause of action for contribution at law or in equity, independently of the Law Reform (Miscellaneous Provisions) Act 1946. To evaluate that argument some of the historical background of contribution at law and equity needs to be traced, as does its application to joint tortfeasors.

Contribution at Law

88 Where several people with interests in land were liable to meet some types of obligation relating to the land, but a judgment for the whole obligation was obtained against just one of them, that person could take proceedings in the common law courts, by a writ of scire facias or a procedure of audita querela, to achieve the result that execution was levied only for his proper share: Sir Will. Harbert’s Case (1584) 3 CoRep 11b; 76 ER 647; Dering v Earl of Winchelsea (1787) 1 Cox 318 at 321; 29 ER 1184 at 1185; Bonner v Tottenham & Edmonton Permanent Investment Building Society [1899] 1 QB 161 at 175 per Vaughan Williams LJ. The rise of the action of indebitatus assumpsit provided another basis on which common law courts could enforce contribution, concerning obligations not necessarily related to land. This was done by the device of implying a promise, on the part of a defendant from whom contribution was sought, to pay the appropriate share.

89 Merryweather v Nixan (1799) 8 TR 186; 101 ER 1337 was such an action seeking contribution on the basis of an implied assumpsit. In a previous action, both Merryweather and Nixan had been sued by one Starkey. Starkey’s claim was an action on the case, for damage to his reversionary estate in a mill. His claim included a count in trover, for the machinery belonging to the mill. He recovered a judgment, and levied the whole of it against Merryweather. Merryweather thereupon brought an action against Nixan for contribution, on the basis of an implied assumpsit, grounding an action for money paid by Merryweather to the use of Nixan. The report states, at TR 186, ER 1337:

“At the trial, before Mr Baron Thomson, at the last York Assizes, the plaintiff was nonsuited, the learned Judge being of opinion that no contribution could by law be claimed as between joint wrong-doers; and, consequently, this action, upon an implied assumpsit, could not be maintained on the mere ground that the plaintiff had alone paid the money which had been recovered against him and the other defendant in that action.”

90 The reported case is a motion to set aside the nonsuit. The totality of the report of the reasons given is:

“Lord Kenyon, Ch J said, there could be no doubt but that the nonsuit was proper: that he had never before heard of such an action having been brought, where the former recovery was for a tort: that the distinction was clear between this case and that of a joint judgment against several defendants in an action of assumpsit: and that this decision would not affect cases of indemnity, where one man employed another to do acts, not unlawful in themselves, for the purpose of asserting a right.

Rule refused.

Philips v Biggs

91 Cases in the nineteenth century explored the circumstances in which contribution was, or was not, possible between tortfeasors. Wooley v Batte (1826) 2 Car P 417; 172 ER 188 was an action in assumpsit, seeking contribution. The plaintiff and the defendant were partners in operating a stagecoach. A passenger had recovered a verdict against the plaintiff, arising from the negligence of the coachman (the plaintiff not being personally present at the time of the accident). The plaintiff paid the judgment, and sought contribution. He succeeded. There are no reasons given for the judgment. However two arguments were put by counsel – the first that there was no personal fault in the plaintiff (ie the plaintiff’s liability was entirely a vicarious liability), the second that the passenger could just as easily have sued in assumpsit as in tort, in which case there would have been no doubt that the plaintiff could recover contribution.

92 Pearson v Skelton (1836) 1 MW 504; 150 ER 533 was a case whose facts were not materially different to those of Wooley v Batte. Contribution was opposed on two grounds – first, that an action for contribution did not lie between tortfeasors, and, second, that because the plaintiff and defendant were partners the proper remedy was a remedy in equity seeking account. The plaintiff was nonsuited at trial, and on a motion to set aside the nonsuit the trial judge’s decision was confirmed, but only because of the second point relied on. Parke B said, “the first objection made at the trial does not apply”.

93 Adamson v Jarvis (1827) 4 Bing 66; 130 ER 693 was an action in the Court of Common Pleas, being an action on the case brought by an auctioneer against a person on whose instructions he had sold goods. The goods did not belong to that person notwithstanding that he had represented to the plaintiff that he was entitled to dispose of them. The auctioneer had been held liable at the suit of the true owner, for the value of the goods. The auctioneer succeeded at trial. The reported case is a motion in arrest of judgment which the defendant brought, and which failed. In substance there were two reasons for its failure. The first was that there was an implied indemnity in the contract whereby the defendant engaged the plaintiff to act as an auctioneer, and hence the last proposition of Lord Kenyon in Merryweather v Nixan applied. The second was that:

“… the rule that wrongdoers cannot have redress or contribution against each other is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act.” (At 4 Bing 73; 130 ER 696)

94 Betts v Gibbins (1834) 2 Ad E 37; 111 ER 22 was an action in Kings Bench, in assumpsit. The plaintiffs were carriers of goods. They carried goods of the defendant, which the defendant had sold to A. On the defendant’s direction, they refused to deliver those goods to A. A sued the plaintiffs for conversion, and, upon the defendant declining to indemnify the plaintiff, the plaintiff settled the action. By this action, the plaintiff sued the defendant in assumpsit, seeking indemnity, alleging an implied promise to indemnify. The plaintiff succeeded, on the ground that there was nothing clearly illegal in the defendant telling the plaintiff not to deliver the goods, which would prevent the implication of the promise to indemnify.

95 Palmer v Wick and Pultneytown Steam Shipping Company Limited [1894] AC 318 was an appeal to the House of Lords from Scotland. Hence any remarks in it about English law were obiter dicta. A workman unloading a ship had been killed. His widow brought an action against the owner of the ship alleging that defective equipment on the ship had caused the death, and against the stevedore responsible for unloading the ship. A joint and several judgment was entered against them. The shipowner paid the whole of the judgment, and sought contribution from the stevedore. The Scottish court allowed it, and from that decision an appeal was brought to the House of Lords. The trial had been before a jury, so no explanation for the basis upon which the shipowner had been found negligent was available. Lord Herschell LC noted, at 322, that the consequence of this was that the jury might have found their verdict of negligence not on the basis of some personal fault in the shipowners, but on the basis of vicarious liability for an action of the Master. He said, at 324:

Merryweather v Nixan

132 That aspect of the law of criminal libel was removed in England by the statute 6 and 7 Victoria chapter 6. Section 7 of that Statute permitted a person charged with libel to prove that the publication was made without his authority, consent or knowledge and that it did not arise from want of due care or caution on his part.

133 The divergence between the civil law of defamation, and the criminal law of defamation, has increased since then. Section 49 of the Defamation Act 1974 abolished the common law misdemeanour of criminal libel (other than the law of blasphemous, seditious or obscene libel). Section 50 created a new statutory offence whereby:

“(1) A person shall not, without lawful excuse, publish matter defamatory of another living person:

(a) with intent to cause serious harm to any person (whether the person defamed or not), or

(b) where it is probable that the publication of the defamatory matter will cause serious harm to any person (whether the person defamed or not) with knowledge of that probability.

Penalty: Imprisonment for a term not exceeding three years or a fine of such amount as the court may impose or both. …

(4) Proceedings for an offence under this section may not be instituted without the written consent of the Attorney General.”

134 There might still be some scope for a contract to provide an indemnity against, or contribution towards, a libel to be not enforced on the grounds of public policy if the person claiming indemnity or contribution had knowingly contravened section 50. However, the divergence between the tort of defamation and criminal defamation means that the cases I have mentioned at paragraphs 102-106 of this judgment cannot be taken as accurately stating the present law in all aspects of their reasoning. In the present case, the defendant does not allege that any of the actions of Mr Belan connected with publication of the letter and the leaflet amounted to a criminal offence. Thus, the cases at paragraphs 102-106 of this judgment cannot be relied on as sufficient to show that the plaintiff has no right to contribution – more general considerations must be looked to. (Even if publication of defamatory matter were criminal, contribution between joint publishers could be obtained under section 5 Law Reform (Miscellaneous Provisions) Act 1946, because it allows contribution “where damage is suffered by any person as a result of a tort (whether a crime or not)”.)

Present Situation Re Contribution in Equity Between Tortfeasors

135 Prior to the enactment of the Law Reform (Miscellaneous Provisions) Act 1946 equity would not have allowed contribution between joint tortfeasors. Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 4th edition paragraph 10-005 say, “… the common law turned its face against contribution between joint tortfeasors in Merryweather v Nixan … and equity followed the law …” In so far as “equity following the law” in this area meant that equity would observe the same principles of public policy as the common law adopted, there is, since the enactment of the Law Reform (Miscellaneous Provisions) Act 1946, no reason for equity to object to the allowing of contribution between tortfeasors on any ground of public policy. Insofar as Merryweather v Nixan amounted to a refusal to imply an agreement to indemnify, from the mere circumstance that two people had been found jointly liable for a tort, and one of them had paid the whole of the verdict, it is speaking purely about the basis of a common law action, and there is no occasion for equity to follow it.

136 That does not necessarily mean that the way has been cleared for equity to now recognise that contribution between tortfeasors is possible, in accordance with equity’s own principles. One reason why there might not be any right of contribution between tortfeasors in accordance with equity’s own principles is that equity intervenes only where there is an inadequacy in either the right, or the remedy, created by the common law. It is only the enactment of section 5 Law Reform (Miscellaneous Provisions) Act 1946 which has removed the objection of public policy to equity allowing contribution between joint tortfeasors, yet that section has created its own remedy, and that remedy has not been submitted to be inadequate in any way. What occasion is there, then, for equity to change its view about the availability of contribution between joint tortfeasors from that which it applied before section 5 had been enacted? Further, the usual method by which equity grants contribution is by requiring a common burden to be shared by all those who are subject to it “either equally where they are liable in the same amount or proportionately, where the amount of their liability differs” (per Gaudron ACJ and Hayne J, Burke v LFOT Pty Ltd (2002) 76 ALJR 749 at 752; [2002] HCA 17 at [14]). The statutory right of contribution apportions the liability amongst tortfeasors in a different way, namely by reference to the court’s view of what proportions the court regards as just and equitable having regard to the extent of each tortfeasor’s responsibility for the damage. To allow equitable contribution between tortfeasors, and apportion the liability in equity’s traditional way, would be to proceed contrary to Parliament’s will as expressed in the statute, about how liability between tortfeasors should be apportioned.

137 These factors which make me pause about whether, today, equity would grant contribution between joint tortfeasors do not apply to a situation where there is one tortfeasor, who seeks contribution from someone who is liable for the same damage as the tortfeasor, but who is not a tortfeasor. Section 5 Law Reform (Miscellaneous Provisions) Act 1946 does not enable there to be contribution in that situation. Hence, provided other requirements for contribution are present (including the existence of coordinate liabilities) the removal, manifested by the enactment of section 5 Law Reform (Miscellaneous Provisions) Act 1946 of any public policy objection to a tortfeasor being relieved of the consequences of his own wrongdoing means that there might be contribution between a tortfeasor and someone who is not a tortfeasor.

The Judgment Against Both Tortfeasors as a Basis for Equitable Contribution

138 And what of the plaintiff’s argument that the existence of a judgment against both Mr Belan and Mr Casey demonstrates that they are under a coordinate liability, which suffices for establishing an equity of contribution between them? In my view, that argument does not advance the plaintiff’s cause. To explain why, I shall consider first how the existence of a judgment bears upon the availability of contribution at law between tortfeasors.

139 The existence of a judgment could, in some circumstances, provide the foundation for an action of assumpsit. In the heyday of the notion that implied contract was a basis for civil liabilities, Stephen’s Treatise on the Principles of Pleading in Civil Actions (7th edition 1866) said, at 11,

the law always implies a promise to do that which a party is legally liable to perform

140 The view that the law implies a promise to do that which a party is legally liable to perform led to a decision that there was an implied contract on the part of a judgment debtor to pay a judgment debt, including a foreign judgment debt (Grant v Easton (1883) 13 QBD 302 at 303 (though there is no implied promise recognised by the common law to obey a decree of the Court of Chancery (Bailey v Bailey (1884) 13 QBD 855 at 859), and no implied promise to pay a judgment of a court given under a statutory procedure which reserves to the judge a power to rescind or alter his judgment (Bailey v Bailey, at 860).) This implied contract to pay a judgment debt justified the court in using a rule which permitted service out of the jurisdiction of actions for breach of contract to enforce a judgment debt (Adcock v Aarons (1903) 5 WALR 140; State of Victoria v Hansen [1960] VR 582 at 586.)

141 However the implied contract arising from a judgment is one for the judgment debtor to pay the judgment creditor. The judgment has already declared the existence of the legal obligation for the judgment debtor to pay the judgment creditor. The existence of a judgment against two joint tortfeasors establishes nothing about the liability of the tortfeasors to pay one another. The decision in Merryweather v Nixan itself denies that there is any implied obligation for one of two joint tortfeasors, who have been found liable by judgment, to make any payments to the other joint tortfeasor.

142 So far as the judgment against two joint tortfeasors being a basis for equitable contribution is concerned, the judgment establishes that the two tortfeasors are indeed under a liability. Each of them is under a liability of the same type, and payment by one of them of that liability will discharge the other. However those factors are not by themselves necessarily enough to establish the existence of an equity of contribution. The factors which I have mentioned earlier in paragraph [136], as ones which make me pause before deciding that there can be an equity of contribution between tortfeasors, apply equally to the situation where joint tortfeasors have been found liable by judgment as to the situation where they have not been found liable by judgment.

143 I do not propose to decide whether any right of contribution between joint tortfeasors exists in accordance with equitable principles. Rather, I shall assume that it exists, and turn to consider whether the present proceeding was brought too late to enforce any such equitable right of contribution.

Application of Periods of Limitation by Analogy

144 The Limitation Act 1969 does not impose any period of limitation for an action to enforce an equity of contribution. However, section 23 explicitly contemplates that certain sections of that Act can be applied by analogy to a claim for equitable relief.

145 Insofar as an action for contribution at law was based on assumpsit, it was an action in quasi contract, and so had a six year limitation period apply to it under section 14(1)(a) Limitation Act 1969. For a claim to contribution at law, the cause of action is not complete until the plaintiff has actually paid more than his proportion of the debt due: Ex parte Snowdon; In Re Snowdon (1881) 17 Ch D 44 at 48; Wolmershausen v Gullick [1893] 2 Ch 514 at 529.

146 Independently of section 23 Limitation Act equity courts will apply a statute of limitations by analogy. This was explained by Lord Westbury in Knox v Gye (1872) LR5HL 656 at 673-4:

Lockey v Lockey

147 This doctrine was explained by Isaacs J in R v McNeil (1922) 31 CLR 76 at 100:

“Where a Court of Equity finds that a legal right, for which it is asked to give a better remedy than is given at law, is barred by an Act of Parliament, it has no more power to remove or lower that bar than has a Court of Law. But where equity has created a new right founded on its own doctrines exclusively, and no Act bars that specific right, then equity is free. It usually applies, from a sense of fitness, its own equitable doctrine of laches and adopts the measure of time which Parliament has indicated in analogous cases, but, when a greater equity caused by fraud arises, it modifies the practice it has itself created and gives play to the greater equity.”

148 Spry, The Principles of Equitable Remedies, 6th edition (2001) page 419 explains the operation of the application of statutes of limitation by analogy in equity’s concurrent jurisdiction:

“So it is that a plaintiff whose rights at law in land or in a chattel have been barred is not ordinarily permitted to achieve his object indirectly by resorting to equitable remedies; nor is a plaintiff ordinarily entitled to specific performance of a contract if his rights and law have been lost.”

“The court may decide that the material equitable right is so similar to legal rights to which a limitation period is applicable that that limitation period should be applied to it also. In this latter case the limitation period is said to be applied by analogy, and the principles which govern cases of this kind are that if there is a sufficiently close similarity between the exclusive equitable right in a question and legal rights to which the statutory provision applies a Court of Equity will ordinarily act upon it by analogy but that it will so act only if there is nothing in the particular circumstances of the case that renders it unjust to do so. What is regarded by Courts of Equity as a sufficiently close similarity for this purpose involves a question of degree, and reference must be made to the relevant authorities. The basis of these principles is that, in the absence of special circumstances rendering this position unjust, the relevant equitable rules should accord with comparable legal rules.”

149 In accordance with this principle, an allegation of breach of fiduciary duty, based on facts which would also have allowed a common law action for fraud to be brought, has applied to it the same statutory limitation period as the common law action for fraud: Coulthard v Disco Mix Club Ltd (2000) 1 WLR 707 at 730, and a claim for breach of fiduciary duty founded upon the same facts as would justify a claim in tort or contract has the limitation periods for tort or contract applied to it: Cia de Seguros Imperio v Heath(REBX) Ltd [2001] 1 WLR 112. See also Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 4th edition, paragraph 34-075.

150 In the present case, if there were to be an equity of contribution which enabled one joint tortfeasor against whom a judgment had been recovered to sue another joint tortfeasor, the limitation period which would be applied by analogy is that arising under section 26 Limitation Act. It is not the limitation period arising under section 14(1)(a), because it remains the law, even after the enactment of the Law Reform (Miscellaneous Provisions) Act 1946, that there is no action available at law in quasi contract for contribution between tortfeasors. Hence, if there were to be an equitable right of contribution between tortfeasors, the appropriate analogy could not be drawn to s 14(1)(a). Nor is the analogy to be drawn to section 17 of the Limitation Act – an action for contribution, even when the debt in relation to which contribution is sought is a judgment debt, is not “an action on a cause of action on a judgment”. Even though section 26 Limitation Act does not appear on the list of sections which section 23 authorises to be applied by analogy to a cause of action for equitable relief, section 9 preserves the rules of equity concerning the refusal of relief on the grounds of laches acquiescence or otherwise. Thus, the equitable doctrine of the application of a statute of limitations by analogy can, consistently with the structure of the Limitation Act 1969, operate to enable the limitation period arising under section 26 Limitation Act to apply to any equity of contribution which existed between joint tortfeasors.

151 Thus, if there were to be an equity of contribution between Mr Belan and Mr Casey, any right of recovery on that equity of contribution would be statute barred by analogy. If follows that, independently of the reasons given earlier for concluding that the rationale of equitable contribution was not satisfied save in relation to the amount of $23,813.12, any claim for equitable contribution in the present case has been brought too late to be enforceable.

152 This conclusion ought occasion no surprise. It was only by virtue of the enactment of section 5 Law Reform (Miscellaneous Provisions) Act 1946 that contribution between tortfeasors became possible. Section 26 Limitation Act creates a condition upon the exercise of that statutory right of contribution. It would hardly be expected that equity would regard the enactment of section 5 Law Reform (Miscellaneous Provisions) Act 1946 as freeing it to award contribution between tortfeasors, yet not accept the time limitation period to which actions under section 5 were subject.

The Contract/Estoppel Claim

153 Mr Casey contends that there was an agreement between himself and Mr Belan whereby Mr Belan agreed to release him from any claim for contribution to the judgment and costs. Alternatively, Mr Casey claims that Mr Belan is estopped from claiming any such contribution, by having represented that he would not do so, and Mr Casey having acted on that representation in dropping the appeal he had instituted against the judgments.

154 Though Mr Casey gave evidence that his appeal against Kirby J’s judgment was listed for hearing on 26 June 2000, I am satisfied it was an application for leave to appeal which was listed for hearing on that date. Mr Casey gives evidence that on 9 April 2000 he and his wife were invited to a barbecue at Mr Belan’s home. The topic of Mr Casey dropping his appeal arose. Mr Casey gives evidence that he said:

““If I call off the appeal it would have to be replaced by a document to finalise matters between ourselves. I want some finality. The big thing for me is the overhang of costs. I want documentation to end the matter. I don’t want anyone suing me for costs. A deed of release would have to be signed”

Frank replied with words to the effect:

“If the appeal is called off the paperwork will be signed off. I’ll sign anything if you put it in front of me.”

I then said

“I’ll take that on consideration and talk to my solicitor.””

“the overhang of costs”

155 Mr Casey also gives evidence that in the week before the “appeal” was listed he had a conference with counsel he had briefed, and been told that the appeal had good prospects of success, and had deposited $4,500 into Hunt & Hunt’s trust account. Mr Casey continued:

“About Wednesday or Thursday in the week before the appeal I received a ‘phone call from the Plaintiff. He said to me words to the effect

“You have a huge future with the Union. You can’t turn your back on it. You must be walking around blind if you can’t see that everyone is ignoring you.”

I said to the Plaintiff words to the effect

“can we get back on an even keel if I discontinue the appeal?”

The Plaintiff replied with words to the effect

“everything will be forgotten and you’ll be given a place of privilege in the Union”

I said to the Plaintiff words to the effect

“can I get something in writing to remove the threats of costs (and damages)”

The Plaintiff replied with words to the effect

“I’ll sign anything”.”

156 Mr Casey had his solicitors prepare a draft of a Deed of Release between himself and Mr Belan. That Deed of Release was made available to Mr Belan, but was never signed. Mr May advised Mr Belan not to sign it, very soon after Mr May first saw the Deed. Mr Belan never told Mr Casey that he had received that advice, or that he would not sign the Deed, but rather told Mr Casey from time to time that he was still considering it.

157 Mr Casey gave oral evidence that on the day after the barbeque he instructed his solicitor at Hunt & Hunt to prepare the Deed of Release, and that:

“… it was after I gave a copy, I think the original one, to Maurice May, a copy went to Frank. After I spoke to Frank in the office about it he said he was willing to sign it as soon as I dropped off my appeal.

Q. And you dropped off the appeal?

A. Yes I did.”

158 I am not persuaded that I should accept this last quoted evidence of Mr Casey. As Mr Belan is dead, particular care needs to be taken about accepting evidence concerning a conversation with him. The substance of the evidence had not appeared in any of Mr Casey’s affidavits. While I do not think (and it was not submitted) that Mr Casey was being dishonest in his evidence, he sometimes gave evidence which was unreliable.

159 The draft Deed of Release was sent by Hunt & Hunt to Maurice May & Co under cover of a fax dated 23 June 2000. That fax reads:

“ URGENT

We refer to our telephone conversation on 8 June 2000. We enclose copy of a letter from W G McNally & Co dated 24 May 2000.

Our client has instructed us that he is willing to settle his appeal on a commercial basis by discontinuing his appeal provided that your client agrees to release our client from a contribution to the judgment monies. Accordingly, we enclose a draft Deed of Release excluding the judgment of his Honour Justice Kirby (Schedule A to the Deed).

Our client’s Application for Leave to Appeal is listed for hearing on Monday 26 June 2000 at 10.15 am. Bruce McClintock is briefed to appear at the hearing. Therefore, could you please provide us with your client’s instructions in relation to the document as a matter of urgency.

We look forward to hearing from you. Enquiries in relation to this matter can be directed to Sundip Ghedia on 9391 3258.”

160 A communication in those terms, made on 23 June 2000, does not sit well with the contention that an oral agreement had been reached in April 2000 between Mr Belan and Mr Casey. Nor does it sit well with an agreement having been reached, on the telephone, between Mr Belan and Mr Casey in the week before the appeal was due to be heard, whereby Mr Belan agreed to “sign anything” if Mr Casey would drop his appeal.

161 It was also on 23 June 2000 that Hunt & Hunt wrote to the Registrar of the Court of Appeal, advising that Mr Casey’s appeal had settled, and that he would not be proceeding with his application for leave to appeal. On 26 June 2000 Terms of Settlement between Mr Casey, Mr Palmer and Mr Boner were executed by their respective lawyers, dismissing Mr Palmer’s appeal with each side to pay its own costs.

162 Even if Mr Casey’s evidence about the conversation at the barbeque in April 2000 is taken at face value, it would not, it seems to me, amount to reaching of an agreement then and there. Rather, it amounts to Mr Belan making a clear offer, that if the appeal was called off he would sign anything, but Mr Casey not accepting that offer – rather, Mr Casey wanted to think about it further, and talk to his solicitor. Mr Casey’s wife also gave some evidence about a conversation at a barbeque at Mr Belan’s house in April 2000. Her affidavit evidence was that Mr Belan said to Mr Casey, “if you call the appeal off, I will sign a deed of release and clean your name from the defamation case”. Her oral evidence was to similar effect. She says nothing about Mr Casey accepting that proposal of Mr Belan. Thus, her evidence is consistent with that of Mr Casey, and contains the same deficiency so far as any binding agreement having been made at the barbeque is concerned.

163 Neither, it seems to me, does Mr Casey’s account of his telephone conversation with Mr Belan in the week before the appeal, amount to reaching an agreement then and there – it ends with Mr Belan making an offer which is not accepted. Mr Casey’s account of that conversation also has an oddity, which at first made me hesitate to accept it, in the parenthetical inclusion in the statement he attributes to himself of saying he wanted something in writing “to remove the threats of costs (and damages)”. However, on reflection, that oddity is consistent with other evidence. The overall thrust of Mr Casey’s evidence, which I accept, is that he thought that the money being raised within the Union to pay damages and costs connected with the defamation actions was as much for him as for Mr Belan. Even so, Mr Casey had some apprehension about whether there could be any comeback against him concerning the damages. Even though the damages had been paid from money connected with the Union, in June 2000 relations between him and Mr Belan were still strained. The Deed of Release which Mr Casey had his lawyers draw up at this time included the following recitals:

“Belan has paid to the plaintiffs in the Supreme Court proceedings the full amount of judgment, costs and interest payable under the judgment. (“ the judgment monies” ).

Belan’s appeal was discontinued in about October 1999. Casey’s Application for Leave to Appeal is listed for hearing on 26 June 2000.

The opponents to Casey’s appeal have requested that Casey discontinue the appeal. Casey is desirous of settling his appeal on a commercial basis by discontinuing his appeal. However Casey is concerned that Belan will seek an indemnity from Casey to pay Belan a contribution towards the judgment monies

Without any admission of liability, Belan and Casey have reached agreement on the terms set out in this Deed.”

164 Hence, it is not improbable that Mr Casey would have wanted to remove both the threat of having to pay costs, and the threat of having to pay damages. However, I do not accept that Mr Belan, in that telephone call, bound himself to sign any document which might have been put in front of him to remove the threat of “costs and (damages).” At the end of that telephone conversation there was still a need for a deed to be prepared, by lawyers, to give effect to the release. The terms of Hunt & Hunt’s fax sending the Deed on 23 June 2000 are inconsistent with a binding agreement having been reached in the telephone call.

165 Neither am I persuaded that there was any clear and distinct representation made by Mr Belan that, if Mr Casey were to withdraw his appeal, no further action would be taken against him.

166 Thus, Mr Casey’s defences based on contract and estoppel fail.

Whether Mr Casey Should be Required to Make A Differential Contribution

167 Counsel for Mr Casey submits that, because the reason why Mr Casey was found liable in the defamation action was because Mr Belan’s malice was attributed to him, and denied him the benefit of the defence of qualified privilege which was otherwise available, Mr Casey should be entitled to an indemnity from Mr Belan. Alternatively, Mr Casey submits that his involvement in the defamations was less blameworthy than that of Mr Belan, and so, if he is required to pay any contribution at all, it should be a smaller proportion than Mr Belan.

168 In light of the conclusions I have arrived at so far, it is not necessary for me to make any findings concerning these matters. If I were to attempt to do so, I would be doing so on the basis of documents, not on the basis of how any witness performed before me. Thus, if the Court of Appeal were to disagree with any of the findings I have made so far, it would be in as good a position as I am to make findings about the proportions in which any contribution should be made.

1. The proceedings are dismissed.

**********

Last Modified: 05/05/2003

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Citations

Belan v Casey [2003] NSWSC 159

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CITATION:	Belan v Casey [2003] NSWSC 159
HEARING DATE(S):	4/3/03-6/3/03
JUDGMENT DATE:	2 May 2003
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	Application for contribution between tortfeasors jointly and severally liable to pay a judgment dismissed, on basis that; (a) no right of contribution at law existed; (b) any statutory right of contribution is statute barred; (c) for all except $23,813.12, funding, by people other than the plaintiff, of payment of judgment debt meant rationale for equitable contribution did not exist; (d) even if an equity of contribution now existed between joint tortfeasors (a matter expressly not decided) it would be statute barred by analogy.
CATCHWORDS:	EQUITY - equitable contribution - requirement for plaintiff to have actually paid or to be about to be required to pay more than his/her share - contribution dependent on matters of substance not technicality - contribution not available when plaintiff in substance not worse off through circumstances of discharge of liability - EQUITY - equitable contribution - whether now available between joint tortfeasors - EQUITY - limitation of action - application of statutes by analogy - TORTS - THE LAW OF TORTS GENERALLY - joint or several tortfeasors - basis for contribution between joint tortfeasors - whether common law action now available for contribution between joint tortfeasors - LIMITATION OF ACTIONS - contribution between tortfeasors - application of limitation period by analogy if equitable right of contribution were available between tortfeasors - CONTRACTS - whether contract entered in particular circumstances - no consideration of principle - ESTOPPEL - whether estoppel exists in particular circumstances - no consideration of principle
LEGISLATION CITED:	Defamation Act 1974 Law Reform (Miscellaneous Provisions) Act 1946 Limitation Act 1969 Mercantile Law Amendment Act 1856 Motor Vehicles (Third Party Insurance) Act 1942 Municipal Corporation Reform Act 1835 Trade Practices Act 1974 (Cth)
CASES CITED:	Adamson v Jarvis (1827) 4 Bing 66; 130 ER 693 Adcock v Aarons (1903) 5 WALR 140 Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342 Arnold v Clifford (1835) 2 Sumner 238 Attorney General v Wilson (1840) Cr & Ph 1; 41 ER 389 Austral Pacific Group Limited (in liquidation) v Airservices Australia (2000) 203 CLR 136 Australian Breeders Co-operative Society Ltd v Jones (1997) 150 ALR 488 Bailey v Bailey (1884) 13 QBD 855 Betts v Gibbins (1834) 2 Ad E 37; 111 ER 22 Bonner v Tottenham & Edmonton Permanent Investment Building Society [1899] 1 QB 161 Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 Burke v LFOT Pty Ltd [2002] HCA 17; (2002) 76 ALJR 749 Cia de Seguros Imperio v Heath (REBX) Ltd [2001] 1 WLR 112 Cockburn v GIO Finance Ltd (No.2) (2001) 51 NSWLR 624 Colburn v Patmore (1834) 1 CM&R 73; 149 ER 999 Coulthard v Disco Mix Club Ltd (2000) 1 WLR 707 Dall v The Blue Wren Taxi Co Pty Ltd [1926] VLR 365 Davenport v Commissioner for Railways (1953) 53 SR (NSW) 552 Dering v Earl of Winchelsea (1787) 1 Cox 318; 29 ER 1184 Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 Genders v Government Insurance Office of NSW (1959) 102 CLR 363 Grant v Easton (1883) 13 QBD 302 James Hardie & Coy Pty Limited v Seltsam Pty Limited (1998) 196 CLR 53 Jones v Mortgage Acceptance Nominees Ltd (1996) 63 FCR 418; (1996) 142 ALR 561 Knox v Gye (1872) LR5HL Re: La Rosa; ex parte Norgard v Rodpat Nominees Pty Ltd (1991) 31 FCR 83 Lingard v Bromley (1812) 1 V & B 114; 35 ER 45 London Association for Protection of Trade v Greenlands Limited [1916] 2 AC 15 Mahoney v McManus (1981) 180 CLR 370 Merryweather v Nixan (1799) 8 TR 186; 101 ER 1337 Moscati v Lawson (1835) 7 Car P 32; 173 ER 14 Palmer v Wick and Pultneytown Steam Shipping Company Limited [1894] AC 318 Pearson v Skelton (1836) 1 MW 504; 150 ER 533 R v Holbrook (1878) 4 QBD 42 R v McNeil (1922) 31 CLR 76 Shackell v Rosier (1836) 2 Bing (NC) 635; 132 ER 245 Sir Will. Harbert's Case (1584) 3 CoRep 11b; 76 ER 647 Sky Channel v Tszyu [2000] NSWSC 838 In Re Snowdon; ex parte Snowdon (1881) 17 Ch D 44 State of Victoria v Hansen [1960] VR 582 The Englishman and The Australia [1895] P 212 Trade Practices Commission v Manfal Pty Ltd (No.3) (1991) 33 FCR 382 W H Smith & Son v Clinton (1908) 99 LT 840 Wolmershausen v Gullick [1893] 2 Ch 514 Wooley v Batte (1826) 2 Car P 417; 172 ER
PARTIES :	Derrick Belan - First Plaintiff Nicholas Belan - Second Plaintiff (as Executors of the Estate of the Late Frank Belan) Arthur Casey - Defendant
FILE NUMBER(S):	SC 3909/01
COUNSEL:	L J Aitken - Plaintiffs M Dulhunty - Defendant
SOLICITORS:	Maurice May & Co - Plaintiffs R L Whyburn & Associates - Defendant

Date	Amount	Payee/butt entry	Account drawn on
29 June 99	8500.00	T Molomby	Campaign Fund
8 Jul 99	8500.00	T Molomby	Campaign Fund
28 Sep 99	74,479.70	Edward Palmer	Commonwealth Bank of Australia bank cheque
29 Sep 99	85,937.70	Denis Boner	Commonwealth Bank of Australia bank cheque
30 Mar 00	31,620.00	W G McNally	Frank Belan Defamation Defence Fund
30 Mar 00	700.00	Supreme Court of NSW	Frank Belan Defamation Defence Fund
21 Mar 01	5,400.00	MM 6 months	Campaign Fund
29 Mar 01	3,807.50	M May	Campaign Fund
16 Aug 01	13,500.00	M May	Campaign Fund
10 Apr 02	47,480.80	Iris Patricia Palmer	Maurice May & Co trust account