Greinert v Brooker (No 3)

[2018] NSWSC 1771

Supreme Court

New South Wales

Medium Neutral Citation:	Greinert v Brooker (No 3) [2018] NSWSC 1771
Hearing dates:	2 November 2018
Decision date:	21 November 2018
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Leave to file the proposed amended cross-claim served on 29 October 2018 is refused
Catchwords:	DEFAMATION – republication – where plaintiff sued persons who provided source material later included as part of a television broadcast but did not sue the broadcaster – repetition of source material in the broadcast relied upon by plaintiff only as to damages rather than as a separate cause of action – requirements of pleading of a cross-claim for contribution by the source against the broadcaster – whether open to source to plead claim against broadcaster based on less than the whole of the episode broadcast
Legislation Cited:	Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c)
Cases Cited:	Bracks v Denoon (Supreme Court (NSW), Nicholas J, 14 December 2006, unrep) Bracks v Smyth-Kirk (2009) 263 ALR 522; [2009] NSWCA 401 Greinert v Brooker (No 2) [2018] NSWSC 1763 Greinert v Brooker [2018] NSWSC 1194 McManus v Beckham (2002) 1 WLR 2982; [2002] EWCA Civ 939 Mohareb v Fairfax Media Publications (No 3) [2017] NSWSC 645 Tsvangarai v Special Broadcasting Service [2002] NSWSC 532
Category:	Procedural and other rulings
Parties:	Robert Alexander Greinert (plaintiff) John William Brooker (first defendant) Benjamin Morgan (second defendant) TCN Channel Nine Pty Ltd (first cross defendant) Nine Digital Pty Ltd (second cross defendant)
Representation:	Counsel: S Chrysanthou (plaintiff) R Rasmussen (defendants) M Richardson (cross defendants)   Solicitors: Ford Law (plaintiff) Kalantzis Lawyers (defendants) Mark O’Brien Legal (cross defendants)
File Number(s):	2017/108676
Publication restriction:	None

Judgment

1. HER HONOUR: John Brooker and Benjamin Morgan gave interviews to a television journalist during the course of which it is alleged they defamed the plaintiff, Robert Greinert. Parts of what they said were included in an episode of the 60 Minutes programme broadcast on Channel Nine. Mr Greinert has sued Mr Brooker and Mr Morgan for their remarks, including the repetition of those remarks on television, but has not sued Channel Nine. This judgment determines the third in a series of interlocutory disputes concerning the entitlement of Mr Brooker and Mr Morgan to seek to recover contribution for any liability they may have to Mr Greinert from the relevant Channel Nine entities by way of cross-claim under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), which makes provision for contribution between tort-feasors liable in respect of the same damage, whether as joint tort-feasors or otherwise.

2. For convenience, I will refer to Mr Brooker and Mr Morgan as the sources and the Channel Nine entities as the broadcaster.

3. In an earlier judgment published on 27 July 2018, I granted leave to the sources to file the cross-claim as then propounded: Greinert v Brooker [2018] NSWSC 1194. However, the issues argued at that time were confined to an issue raised by the broadcaster as to the proper construction of s 5(1)(c) and discretionary considerations raised by the plaintiff. Leave was otherwise granted without prejudice to the broadcaster’s right to object to the form of the cross-claim in the event that certain foreshadowed objections were not addressed.

4. The cross-claim was filed on 30 July 2018. The broadcaster’s objections were not addressed. After further correspondence, a proposed amended cross-claim was served in early October 2018. On 15 October 2018, I refused leave to file the proposed amended cross-claim on the grounds that it failed to plead the elements of any cause of action at the suit of the plaintiff on the strength of which the broadcaster would, if sued, have been liable to him: Greinert v Brooker (No 2) [2018] NSWSC 1763.

5. A further proposed amended cross-claim was filed on 29 October 2018 (apparently the fourth version of the cross-claim). The proposed amendment does attempt to plead the elements of a cause of action against the broadcaster but the broadcaster maintains that it is still defective. I have determined that leave to file the further proposed amended cross-claim must be refused, for the following reasons.

6. The broadcaster’s objection can be determined by reference to paragraphs 10, 11 and 12 of the proposed amendment, which claims contribution in respect of the television version of the broadcast on behalf of Mr Brooker. Paragraphs 13 and 14 plead a claim in the same terms as paragraphs 11 and 12 on behalf of Mr Morgan; paragraphs 15 to 19 repeat paragraphs 10 to 14 in respect of the Internet version of the broadcast.

7. Paragraphs 10, 11 and 12 plead the claim in the following terms (emphasis added):

“10.    On 4 September 2016 portions of the interviews with the first and second Cross-claimants were published by the first and second cross-defendants on Channel Nine by way of television broadcast over the Nine Network in New South Wales and throughout Australia as part of an episode of the “60 Minutes” programme.

Particulars

The transcript of the said television broadcast of an episode of the “60 Minutes” programme is set out in Schedule B to the plaintiff’s Amended Statement of Claim dated 7 July 2017.

11.    In respect of the first cross-claimant the plaintiff alleges (in his Amended Statement of Claim dated 7 July 2017) that the first matter complained of (when published by the first and second cross-defendants as part of an episode of 60 Minutes being Schedule B to the plaintiff’s Amended Statement of Claim dated 7 July 2017) was defamatory of the plaintiff (in its natural and ordinary meaning) and carried the following defamatory meanings (or meanings not different in substance):

Particulars

a)   Robert Greinert fraudulently entered into an agreement with the PNG Museum that he had no authority to enter into to [sic].

b)   Robert Greinert forged the seal of the Historical Aircraft Restoration Society on an agreement with the PNG Museum.

12.    The first cross-claimant hereby makes the same allegation (as referred to in the previous paragraph and for the purposes only of this cross-claim which otherwise the allegation is denied) as against the first and second cross-defendants, that is, that the first matter complained of (when published by the first and second defendants as part of an episode of 60 Minutes being Schedule B to the plaintiff’s Amended Statement of Claim dated 7 July 2017) was defamatory of the plaintiff (in its natural and ordinary meaning) and carried the following defamatory meanings (or meanings not different in substance):

Particulars

a)   Robert Greinert fraudulently entered into an agreement with the PNG Museum that he had no authority to enter into to [sic].

b)   Robert Greinert forged the seal of the Historical Aircraft Restoration Society on an agreement with the PNG Museum.”

8. The focus of the broadcaster’s argument was the fact that the proposed cross claim pleads that the sources’ words were republished only as “part of an episode” of the 60 Minutes programme (the relevant passages are emphasised in the extract set out above). The premise of an entitlement to contribution under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act is that the person from whom contribution is sought “is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise”. The cross claim thus implicitly contends or assumes that the broadcaster would if sued by the plaintiff have been liable to him for publication of something less than the whole of the episode in question.

9. That would be unorthodox. As submitted by Mr Richardson, who acts for the cross-defendants, it is well established that a plaintiff must sue on the whole of the relevant matter so that the allegedly defamatory statements are taken in context. That is the approach I took in Mohareb v Fairfax Media Publications Pty Ltd (No 3) [2017] NSWSC 645 at [41]-[43]. In doing so, I applied the decision of Nicholas J in Bracks v Denoon (Supreme Court (NSW), 14 December 2006, unrep) which was considered with apparent approval by the Court of Appeal in Bracks v Smyth-Kirk (2009) 263 ALR 522; [2009] NSWCA 401 at [53] to [55] per McColl JA; Allsop P agreeing at [1].

10. There is sometimes a contest as to what is the whole of the relevant matter. However, in the case of a television programme such as the present, the position is clear: the whole of the relevant episode should be pleaded: Morgan Tsvangirai v The Special Broadcasting Service [2002] NSWSC 532 at [12] per Levine J.

11. The broadcaster accordingly submitted that a cross-claim in the form proposed was defective and would be liable to be struck out. In short, the vice of the proposed amendment was said to be that, had the plaintiff sued the broadcaster, he could not have sued on a portion only of the broadcast; he would have to have pleaded the whole broadcast as the matter complained of or else faced an application to have the balance “struck in”.

12. In making that submission, Mr Richardson observed that the plaintiff's allegation of republication against the sources identifies the whole of the interview given by each source to the journalist as the matter allegedly republished (see transcript page 3, line 22 from 2 November 2018). I will return to that issue at the conclusion of this judgment.

13. Mr Rasmussen, who appears for the sources, explained that the object in proposing a cross-claim in those terms was that the sources were attempting to re-plead as against the broadcaster the claim they understand the plaintiff to be putting against them. In my view, that is precisely the problem, because the basis on which the sources are liable to the plaintiff for the repetition of their remarks on national television is one that is not sustainable as a discrete cause of action at the suit of the plaintiff against the broadcaster. Section 5(1)(c) does not require that the liability of the person from whom contribution is sought to be joint liability with that of the person seeking contribution; in the present case, there is not joint liability. If there is an entitlement to contribution, it is based on concurrent liability for the same damage.

14. Mr Rasmussen sought to defend the form of the proposed pleading by reference to the remarks of McColl JA in Bracks v Smyth-Kirk, in particular where her Honour endorsed the decision of the England and Wales Court of Appeal in McManus v Beckham (2002) 1 WLR 2982; [2002] EWCA Civ 939. That was a case arising out of remarks made by Mrs Victoria Beckham when she attended a record shop which sold memorabilia. The plaintiffs alleged that she "in a rude, loud and unreasonable way” informed customers present in the shop that a purported autograph on a photograph of her husband, David Beckham, was “a fake". The plaintiffs alleged that the incident received considerable press coverage as a result of which their business had suffered a dramatic downturn.

15. Mrs Beckham succeeded at first instance in obtaining an order striking out the paragraphs of the claim in which the press publication and the losses said to flow from it were pleaded. The Court of Appeal allowed an appeal against that decision, reinstating the paragraphs which the judge had struck out.

16. The decision in McManus supports the approach taken by the plaintiffs in the present case, providing clear support for the proposition that a plaintiff can sue the original source and seek to recover damages caused by the repetition of that original publication without suing on the republication as a separate cause of action and even where the republication contains only a partial publication of the original sting: at [12] to [13] per Waller LJ, Clarke and Laws LJJ agreeing at [36] and [37]. The issue in that instance is whether the publication in the press was causative of further damage such as to warrant holding the original publisher liable. The matter was put perhaps most forcefully by Laws LJ who, after noting (uncontroversially) that defamation cases have over time been “girt about with unhelpful complexities”, said at [42]–[43]:

“The law needs to be simplified. The root question is whether D, who has slandered C, should justly be held responsible for damage which has been occasioned, or directly occasioned, by a further publication by X. I think it plain that there will be cases where that will be entirely just. The observation of Bingham LJ as he then was in Slipper at 300 that “[d]efamatory statements are objectionable not least because of their propensity to percolate through underground channels and contaminate hidden springs” states an ancient and persistent truth, long ago vividly described in Vergil’s account of Aeneas and Dido Queen of Carthage (Aeneid IV, 173-188).

It will not however in my judgment be enough to show that D’s slander is a cause of X’s further publication: for such a cause might exist although D could have no reason to know of it; and then to hold D responsible would not be just. This is why the old formula, “natural and probable cause”, is inapt even as a figurative description of the relationship that needs to be shown between D’s slander and the further publication if D is to be held liable for the latter. It must rather be demonstrated that D foresaw that the further publication would probably take place, or that D (or a reasonable person in D’s position) should have so foreseen and that in consequence increased damage to C would ensue.”

17. The problem with the present proposed amended cross-claim is that it seeks to plead against the television broadcaster what is, properly understood, a particular of damages against the sources, not a cause of action against the broadcaster. The plaintiff’s cause of action against the television broadcaster, had it been sued, would be for the whole of the matter published by it, namely, the whole of the episode, not just the words of the sources repeated in the broadcast.

18. Contrary to a submission put in the earlier rounds of argument concerning this issue, I do not apprehend any inconsistency between allowing a plaintiff to recover damages for the repetition in the broadcast of just the words stated by the source while also requiring that plaintiff, if he or she sues the broadcaster, to sue on the whole of the episode in question. As the foregoing analysis seeks to explain, one is in effect a particular of the damages caused by the original publication for which the source is liable; the other is a separate cause of action against the broadcaster. The broadcaster, if liable for that cause of action, would be a concurrent tort-feasor for part of the same damage as the source, if each separate defamation conveyed the same defamatory sting. The liability of the broadcaster might be greater or lesser than that of the source, depending on the separate imputations conveyed by each separate defamation and the defences available in each case. But, for example, if the original statements made by the sources (on the one hand) and the broadcast (on the other) each conveyed the meaning “that the plaintiff fraudulently entered into an agreement with the PNG Museum that he had no authority to enter into” (imputation (a) in the amended statement of claim), each might potentially be liable to the plaintiff for the same damage.

19. One of the arguments put by the sources in support of their application to have the amended statement of claim struck out (determined in Greinert v Brooker (No 2)) was that the statement of claim failed to comply with the requirement explained by McColl JA in Bracks v Smyth-Kirk at [129] where her Honour said that even in a “republication as damages” case, it is necessary, in order to put the defendant on notice of the case he has to meet, to plead the context of the republication as well as the meanings alleged to be conveyed by the republication.

20. In rejecting the defendants’ application, I said:

“19. Both arguments assumed the correctness of the remarks of McColl JA to which I have referred. For the purposes of Mr Richardson's opposition to the filing of the cross-claim, it would have been enough for him to contend that, if the defendants sought to bring a cross-claim against the Channel 9 parties, the case had to be pleaded as against those parties as if they had been sued by the plaintiff. Of course, if they had been sued by the plaintiff, the case would have to have been pleaded in the usual way including specifying imputations (as I have held above).

20. The form of the plaintiff's pleading as against the defendants does not necessarily have to be the same as the form of the defendants' pleading against the proposed cross-defendant. As regards the source, the options available to a plaintiff defamed by both the words of the source to a journalist and the subsequent re-production of those words in a defamatory broadcast are, as this case illustrates, to sue the source for the broadcast as a separate cause of action or to rely on the broadcast (as against the source) only as to damages.

21. In the first example, the plaintiff would have to plead out as against the source (as a principal in the publication of the broadcast) the imputations allegedly conveyed by the broadcast. In that instance, the defendant source could adopt that pleading in a cross-claim as against the television publisher of the broadcast. In the second alternative, the defendant source faces a difficult choice as to whether to bring the broadcaster into the proceedings. For the reasons I have already identified, in my view in that instance the defendant source must plead the elements of the plaintiff’s cause of action for defamation as against the broadcaster, but I do not think it follows that the plaintiff must do the same. For the plaintiff, the only requirement is to plead the elements required to be established in order to recover swelled damages (identified in Bracks v Smyth-Kirk at [127]).

22. In conclusion, in my view, it is open to a plaintiff to sue only the source and to rely on the broadcast only as to damages, in which case, in my view, it is neither necessary nor helpful to specify the imputations. As I intimated in my earlier judgment, in my view they will necessarily be the same as it is the repetition of the sting of the original publication that founds the claim for an increased award against the source.

23. In such a case, the defendants may cross-claim against the broadcaster, but in that event the cross-defendant is entitled to have the case pleaded as against it because, as submitted by Mr Richardson, it may have defences available to it which are not available to the source.”

21. In delivering that judgment, I omitted to address the statement of McColl JA in Bracks v Smyth-Kirk at [129] that, even in a “republication as damages” case, it is necessary for the plaintiff to identify the meanings alleged to be conveyed by the republication. Having reconsidered the decision in Bracks v Smyth-Kirk for the purpose of this judgment (particularly at [129] and [142]), I apprehend her Honour meant only that the plaintiff has to identify, from amongst the imputations or defamatory stings specified in respect of the original publication, which are relied upon in the case on damages based on the repetition or partial repetition of that matter in another forum. Where republication is relied upon only as to damages, it makes no sense for there to be any additional imputations, but there could be fewer.

22. Justice McColl also explained the need for the plaintiff in such a case to plead the context of the republication. After I reserved my decision in the present application, I became concerned as to whether it was necessary to hear the plaintiff further on that issue and for that reason deferred publication of the judgment. Upon further reflection, however, I concluded that the form of the plaintiff’s pleading does not inform the determination of the present question (whether the defendants should have leave to file the latest version of the proposed cross claim). The issue the plaintiff may need to address arises from Mr Richardson’s observation referred to at [12] above. As presently framed, the amended statement of claim appears to assert that the whole of the content of the interview given by each defendant was “republished” as part of the episode of 60 Minutes. That may be problematic.

21. The plaintiff did not seek to be heard on the second application and did not appear at the hearing of that application. If necessary, I will hear the parties further on that issue and as to the appropriate orders consequent upon this ruling including the fate of the cross-claim filed on 30 July 2018.

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Decision last updated: 21 November 2018