Fairfax Media Publications Pty Ltd v Cummings; Fairfax Digital Australia & New Zealand Pty Ltd v Cummings

Fairfax Media Publications Pty Ltd and Fairfax Digital Australia & New Zealand Pty Ltd (the applicants) sought leave to appeal a decision of the primary judge who refused to consolidate two defamation proceedings brought against them by Mr. Cummings. The applicants argued that maintaining separate proceedings constituted an abuse of process, particularly as they were distinct legal entities within the same publishing group and were alleged to be joint tortfeasors.

The central legal issues before the Court of Appeal were whether the primary judge's refusal to consolidate the proceedings was attended with sufficient doubt to warrant reconsideration, and whether the maintenance of separate proceedings amounted to an abuse of process. A key consideration was whether a consolidation order would deprive the applicants of the benefit of the statutory damages cap provided by section 139F(1) of the *Civil Law (Wrongs) Act 2002* (ACT). The court also considered whether a substantial injustice would result if leave to appeal were refused and the first instance decision was found to be wrong.

The Court of Appeal reasoned that the applicants, as separate legal entities, were entitled to maintain separate proceedings. It was noted that the applicants could rely in mitigation of damages on the fact that Mr. Cummings had brought separate proceedings, pursuant to section 139I(1)(d) of the *Civil Law (Wrongs) Act 2002* (ACT). Furthermore, the court found that the applicants' concern about the statutory damages cap was premature, as the respondents' success and the quantum of damages had not yet been determined. The court concluded that if the refusal to consolidate were to affect the final decision, the applicants would retain their right to appeal.

Leave to appeal was refused.