Habib v Radio 2UE Sydney Pty Ltd

[2009] NSWCA 231

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231

Hearing dates:

20 February 2009

Decision date:

31 July 2009

Before:

Giles JA at 1; McColl JA at 3; Campbell JA at 214

Decision:

Proceedings CA 40244/08

 

1. Direct that the time to file the summons for leave to appeal be extended to 13 August 2008.

 

2. Grant leave to appeal.

 

3. Direct that the draft notice of appeal in the White Book stand as the notice of appeal in proceedings CA 40113/08

 

Proceedings CA 40113/08

 

1. Appeal allowed.

 

2. Set aside the order made on 16 April 2008 striking out and dismissing the District Court proceedings.

 

3. Dismiss the respondents’ Notice of Motion dated 16 August 2006.

 

4. Respondents to pay the appellant’s costs of the hearing of the respondents’ Notice of Motion dated 16 August 2006.

 5. Respondents to pay the appellant’s costs of the application for leave to appeal and of the appeal.

Catchwords:

DEFAMATION – publication – republication – nature of liability for republication – whether plaintiff’s claim against newspaper publisher in respect of radio broadcasts characterised as direct publication or republication as damages claim - ESTOPPEL – abuse of process – unsuccessful s 7A Supreme Court trial in respect of newspaper article – pleadings alleged defendant “caused to be published” three radio broadcasts referring to article – whether an abuse of process for plaintiff to commence separate defamation proceedings in the District Court in respect of radio broadcasts – whether plaintiff seeking in District Court proceedings to re-litigate issue lost in unsuccessful s 7A proceedings – whether plaintiff should have sued owners of radio stations in Supreme Court proceedings – whether success in District Court proceedings would lead to conflicting judgments - PROCEDURE – judgments and orders – effect of judgments – consent judgment entered in favour of defendant in earlier proceedings – defendants in later proceedings not parties to or privies in respect of earlier proceedings – whether consent judgment operates as Anshun estoppel to bar later proceedings - PROCEDURE – abuse of process – whether proceedings abuse of process by application of principles for efficient disposition of litigation in Civil Procedure Act 2005 (NSW), ss 56 – 59 and Defamation Act 1974 (NSW), s 3(d) - PROCEDURE – abuse of process – whether proceedings oppressive where statutory right to seek contribution potentially prejudiced

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Defamation (Amendment) Act 1994 (NSW)
Defamation Amendment Act 2002 (NSW)
Defamation Act 1974 (NSW)
Defamation Act 2005 (NSW)
District Court Act 1973 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Supreme Court Act 1970 (NSW)
Workers’ Compensation and Rehabilitation Act 1981 (WA)
Judicature Act (UK)
Supreme Court Rules 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Civil Procedure Rules (UK)

Cases Cited:

AON Risk Services Australia Ltd v Australian National University [2009] HCAB 5
Abigroup Contractors Pty Ltd v ABB Service Pty Ltd (formerly ABB Engineering Construction Pty Ltd) [2004] NSWCA 181
Ainsworth v Burden [2003] NSWCA 90; (2003) 56 NSWLR 620
Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256
Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635
Bazos and Anor v Doman and Ors [2001] NSWCA 347
Blair v Curran [1939] HCA 23; (1939) 62 CLR 464
Brisbane City Council v Attorney-General (Qld) [1979] AC 411
Broxton v McClelland and Another [1995] EMLR 485
Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287
Burtonshaw v BBC (1978) NLJ 483
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1988) 193 CLR 519
Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21; (1988) 164 CLR 502
Cleary v Jeans [2006] NSWCA 9; (2006) 65 NSWLR 355
Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Cutler v McPhail [1962] 2 QB 292
David Syme & Co Ltd v Grey (1992) 38 FCR 303
David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Dow Jones & Co Inc v Jameel [2005] EWCA Civ 75; [2005] QB 946
Dow Jones v Gutnick [2002] HCA 56; (2002) 210 CLR 575
Emmens v Pottle (1885) 16 QBD 354
Gill, Herron and Gardiner v Walton (1991) 25 NSWLR 190
Goldsmith v Sperrings [1977] 1 WLR 478
Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410
Gorton v Australian Broadcasting Commission (1973) 22 FLR 181
Griffith v Australian Broadcasting Corporation [2003] NSWSC 298
Habib v Nationwide News Pty Ltd [2007] HCATrans 802
Habib v Nationwide News Pty Ltd [2007] NSWCA 91
Habib v Radio 2UE Pty Ltd [2008] NSWDC 59
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
Harding v Bourke [2000] NSWCA 60; (2000) 48 NSWLR 598
Harris v 718932 Pty Ltd [2000] NSWSC 784
Harris v 718932 Pty Ltd [2003] NSWCA 38; (2003) 56 NSWLR 276
Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
Henderson v Henderson (1843) 3 Hare 100; [1843-60] ER 313
Howe & Co v Burden [2004] EWHC 196 (QB)
Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69
Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446
James Hardie and Co v Seltsam Pty Ltd [1998] HCA 78; 196 CLR 53
Jamieson & Brugmans v R [1993] HCA 48; (1993) 177 CLR 574
John Fairfax Publications Pty Limited v Obeid [2005] NSWCA 60; (2005) 64 NSWLR 485
John Fairfax Publications Pty Limited v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657
John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291
Johnson v Gore Wood & Co (a firm) [2000] UKHL 65; [2002] 2 AC 1
Kuligowski v MetroBus [2004] HCA 34; 220 CLR 363
Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2008] NSWSC 185; (2008) 72 NSWLR 160
Lange v Australian Broadcasting Corp (Supreme Court of New South Wales, Levine J, 6 September 1996, unreported, BC9604439)
Ling v Commonwealth (1996) 68 FCR 180
Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522
Maple v David Syme [1975] 1 NSWLR 97
McHenry v Lewis (1883) 22 Ch 397
McManus v Beckham [2002] 4 All ER 497; [2002] 1 WLR 2982
Meckiff v Simpson [1968] VR 62
Moore & Ors v Inglis (1976) 50 ALJR 589 (at 593)
Nationwide News P/L v Heggie [2001] NSWCA 257
North West Water Ltd v Binnie & Partners [1990] 3 All ER 547
Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197
PNJ v R [2009] HCA 6; (2009) 83 ALJR 384
Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589
R v Carroll [2002] HCA 55; (2002) 213 CLR 635
R v Edwards [2009] HCA 20; (2009) 83 ALJR 717
R v Humphrys [1977] AC 1
R v O’Halloran (2000) 159 FLR 260
Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271
Ratcliffe v Evans [1892] 2 QB 524
Re Luck [2003] HCA 70; (2003) 78 ALJR 177
Re Thomas Christy Ltd (in liq) [1994] 2 BCLC 527
Reichel v Magrath (1889) 14 App Cas 665
Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198
Rogers v R [1994] HCA 42; (1994) 181 CLR 251
Schellenberg v BBC [2000] EMLR 296.
Sims v Wran [1984] 1 NSWLR 317
Smith v Streatfeild [1913] 3 KB 764
South Australian Housing Trust v State Government Insurance Commission (1989) 51 SASR 1
Spalla v St George Finance Ltd (No 6) [2004] FCA 1699
Speight v Gosnay (1891) 60 LJQB 231
State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Tort Rep 81-423
State of Queensland v JL Holdings Pty Limited [1997] HCA 1; (1997) 189 CLR 146
Tang Man Sit v Capacious Investments Ltd [1996] AC 514
The Age Corporation v Beran [2005] NSWCA 289
Thoday v Thoday (1964) P 181
Thompson v Australian Capital Television Pty Ltd and Others [1996] HCA 38; (1996) 186 CLR 574
Thomson v Lambert [1938] 2 DLR 545
Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173
Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406
Truth (NZ) Ltd v Holloway [1960] 1 WLR 997
Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43
Wallis v Valentine [2002] EWCA Civ 1034
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Ward v Weeks (1830) 7 Bing 211
Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331
White v Overland [2001] FCA 1333
Williams v Hunt [1905] 1 KB 512
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509
Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581
Zunter v John Fairfax Publications Pty Ltd [2005] NSWSC 119; (2005) 62 NSWLR 594

Texts Cited:

A M Dugdale, M Jones and M Simpson, Clerk & Lindsell on Torts, 19th ed (2006)
Halsbury's Laws of England, 2nd ed, vol 13 (1934)
K R Handley, “Anshun Today” (1997) 71 ALJ 934
P Milmo and W V H Rogers, Gatley on Libel and Slander, 11th ed (2008) Sweet & Maxwell
New South Wales Law Reform Commission, Defamation (1971)
R O’Sullivan and R Brown, Gatley on Libel and Slander, 4th ed (1953) Sweet & Maxwell
G Spencer Bower, A K Turner and K R Handley, The Doctrine of Res Judicata, 3rd ed (1996) Butterworths
T Starkie, A Treatise on the Law of Slander and Libel, 1st ed, vol 2 (1830)
T K Tobin and M G Sexton, Australian Defamation Law and Practice, LexisNexis, Butterworths (2003)
Glanville L Williams, Joint Torts and Contributory Negligence, (1951) Stevens & Sons Limited

Category:

Principal judgment

Parties:

Mamdouh Habib – Appellant
Radio 2UE Sydney Pty Ltd – First Respondent
Macquarie Radio Network Network Ltd – Second Respondent

Representation:

Counsel:
C A Evatt with Mr R K M Rasmussen for the Appellant
G O’L Reynolds SC with Mr M G Lynch for the Respondents

  Solicitors:
Peter Erman Solicitor for the Appellant
Banki Haddock Fiora for the Respondents

File Number(s):

CA 40113 of 2008; 40244 of 2008

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

16 April 2008

Before:

Gibson DCJ

File Number(s):

DC 2720 of 2006

Appeal Outcome:   Special leave dismissed with costs by the High Court, 23 April 2010 s208/2009 s209/2009

HEADNOTE 

[This headnote is not to be read as part of the judgment]

The appellant, Mamdouh Habib, was unsuccessful in the Supreme Court in a trial pursuant to s 7A of the Defamation Act 1974 (NSW) against Nationwide News Pty Ltd (“Nationwide”), in respect of a Daily Telegraph article it published. The jury found neither of the imputations pleaded in the Supreme Court proceedings (the “original imputations”) was carried by the article. On the same day the Daily Telegraph article was published, three radio broadcasts were transmitted, each of which referred in varying degrees to the original article. The appellant also pleaded in the Supreme Court proceedings that Nationwide had “caused [the broadcasts] to be published” and that each radio broadcast conveyed the original imputations. At the s 7A hearing, the appellant’s counsel informed the trial judge the radio broadcasts were “republication” so the only issue for the jury was the newspaper article. Counsel for Nationwide agreed.

The appellant appealed unsuccessfully from the jury’s verdict. In June 2006, he commenced defamation proceedings in the District Court against the respondents, Radio 2UE Sydney Pty Ltd and Macquarie Radio Network Ltd, the owners of the two radio stations on which the three radio broadcasts were transmitted. In those proceedings, he pleaded that the radio broadcasts carried the original imputations and additional imputations. In March 2008, a consent judgment for Nationwide was entered in the Supreme Court proceedings in respect of “each pleaded imputation”.

Pursuant to a notice of motion filed by the respondents, the primary judge struck out and dismissed the District Court proceedings as an abuse of process and on the grounds of Anshun estoppel because of the way the applicant conducted his case against Nationwide in the Supreme Court.

The appellant sought leave to appeal.

On appeal, the issues were:

(1) the nature of the appellant’s claim in respect of the radio broadcasts in the Supreme Court proceedings;

(2) the effect of the consent judgment in the Supreme Court proceedings;

(3) whether the appellant was seeking, by changing the form of the proceedings, to litigate the same case in the District Court proceedings on which he failed in the Supreme Court proceedings;

(4) whether the District Court proceedings were an abuse of process by virtue of Anshun estoppel;

(5) whether the District Court proceedings were an abuse of process because of the application of principles for the efficient disposition of litigation reflected in ss 56 – 59 of the Civil Procedure Act 2005 and s 3(d) of the Defamation Act 1974 (NSW);

(6) whether the District Court proceedings were an abuse of process because, by virtue of the jury verdict in the Supreme Court proceedings their right to seek contribution from Nationwide pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) was prejudiced.

Held, granting leave to appeal and allowing the appeal (per McColl JA, Giles and Campbell JJA agreeing)

In relation to (1)

1 The primary judge erred in characterising the appellant’s case in the Supreme Court proceedings against Nationwide as original publisher of the radio broadcasts and in concluding that the Supreme Court proceedings involved the determination on the merits of the question whether the original imputations were carried by the radio broadcasts: (at [166], [178], [180]-[182]).

2 The appellant sued Nationwide in the Supreme Court proceedings as original publisher of the original imputations in the Daily Telegraph article but not as original publisher of the radio broadcasts. The case he made in the Supreme Court proceedings in respect of the radio broadcasts was part of his damages claim in respect of the publication of the Daily Telegraph article and depended on him establishing that the radio broadcasts carried the original imputations and that their publication on the radio broadcasts was the natural and probable consequence of the original publication: (at [171]-[176]).

Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331 distinguished

Speight v Gosnay (1891) 60 LJQB 231; Cutler v McPhail [1962] 2 QB 292 applied

3 In a republication as damages case the issue of liability for the republication (including the meaning of the alleged republication) forms part of the issues the judge determines pursuant to s 7A(4)(b) of the Defamation Act 1974 (NSW): (at [118], [145]).

Griffith v Australian Broadcasting Corporation [2003] NSWSC 298; Zunter v John Fairfax Publications Pty Ltd [2005] NSWSC 119; (2005) 62 NSWLR 594 applied

T K Tobin and M G Sexton , Australian Defamation Law and Practice, LexisNexis, Butterworths (2003) (at [25,123]) referred to

4 The principle that in circumstances of multiple publication of defamatory matter, a person defamed has a “complete remedy” in one proceeding and it is an abuse of process to divide the remedy by bringing subsequent proceedings applies where the plaintiff seeks to sue the “same defendant” being those principally responsible for publishing the same publication: (at [141]).

Williams v Hunt [1905] 1 KB 512; Thomson v Lambert [1938] 2 DLR 545; Maple v David Syme [1975] 1 NSWLR 97; Meckiff v Simpson [1968] VR 62; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404; Lange v Australian Broadcasting Corp (Supreme Court of New South Wales, Levine J, 6 September 1996, unreported, BC9604439); Harris v 718932 Pty Ltd [2003] NSWCA 38; (2003) 56 NSWLR 276 considered

McHenry v Lewis (1883) 22 Ch 397; Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 referred to

5 Accordingly, the only issue for the jury at the s 7A hearing was the s 7A(3) issue as to whether the Daily Telegraph article carried the original imputations. Having regard to the structure of the Defamation Act 1974 Act, and the nature of the s 7A hearing, that was the only pleaded issue which had been “tried and found” or “actually litigated and determined”: (at [179]).

Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446; Kuligowski v MetroBus [2004] HCA 34; 220 CLR 363 applied .

6 As the appellant only relied upon the radio broadcasts as against Nationwide as a component of his damages claim, once the jury found his causes of action founded on the publication of the original imputations failed, he had no claim for damages. There was no hearing on the merits, or argument, on the republication as damages claims. Nor could the claim have been brought forward in the Anshun sense: (at [181]).

Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589 referred to

In relation to (2)

7 Orders made by consent may create an estoppel as between parties and their privies and may be considered for the purpose of determining whether subsequent proceedings would be an abuse of process because that would lead to conflicting judgments. However they do so “only as to those matters which are necessarily decided”: (at [186]). 

Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69 applied

Abigroup Contractors Pty Ltd v ABB Service Pty Ltd (formerly ABB Engineering Construction Pty Ltd) [2004] NSWCA 181; Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2008] NSWSC 185; (2008) 72 NSWLR 160 referred to

8 While the judgment entered in the Supreme Court proceedings gave a verdict for Nationwide “in respect of each pleaded imputation”, it was only in respect of the imputations the jury had rejected, the issue of whether they had been republished in the radio broadcasts never having been determined, or arisen for determination. The judgment for Nationwide thus did not preclude the appellant’s proceedings against the respondents: (at [187].

In relation to (3) 

9 The District Court proceedings were brought against the respondents as original publishers of each radio broadcast (at [127]-[128], [191])

Harris v 718932 Pty Ltd [2003] NSWCA 38; (2003) 56 NSWLR 276; Nationwide News P/L v Heggie [2001] NSWCA 257 applied

Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 referred to

10 While there were similarities between the Daily Telegraph article and the radio broadcasts, they were not “the same defamatory matter”. Each radio commentator embellished the original article with their own statements. Nor were the District Court proceedings brought in relation to imputations “largely identical” to those in the Daily Telegraph article, which the jury had found not to be conveyed: (at [196]-[198], [206]).

Lange v Australian Broadcasting Corp (Supreme Court of New South Wales, Levine J, 6 September 1996, unreported, BC9604439); John Fairfax Publications Pty Limited v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 referred to

11 The primary judge erred in concluding that the appellant was seeking to re-litigate “the same question” or the “same case” on which he failed in the Supreme Court proceedings in the sense required to establish Anshun or Reichel estoppel. The issue whether the respondents were liable as publisher of the radio broadcasts for either the original or the additional imputations had never been “fully litigated”, “properly argued” or “lost”: (at [199]).

Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404; State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Tort Rep ¶81-423; R v O’Halloran (2000) 159 FLR 260; Spalla v St George Finance Ltd (No 6) [2004] FCA 1699 applied

Reichel v Magrath (1889) 14 App Cas 665; Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589 considered

Thomson v Lambert [1938] 2 DLR 545 distinguished

In relation to (4)

12 It was not unreasonable, in the Anshun sense, for the appellant not to have joined the respondents as defendants in the Supreme Court proceedings. He had distinct defamation claims against Nationwide and the respondents in respect of different publications: (at [209]).

13 An outcome favourable to the appellant will not lead to the existence of contradictory judgments: (at [208]).

In relation to (5)

14 Permitting the District Court proceedings to continue will not entail duplication of court time, as no court has previously considered whether any imputation arose from the radio broadcasts: (at [210]).

15 No issue arises which would call for the District Court proceedings to be struck out for efficiency reasons, particularly where s 48 of the 1974 Act expressly contemplates more than one set of proceedings against different defendants, even in respect of matter “to the same purport or effect” as that in respect of which damages have already been recovered: (at [210]).

Dennis v Australian Broadcasting Corporation [2008] NSWCA 37; Schellenberg v BBC [2000] EMLR 296 referred to

In relation to (6)

16 The fact the respondents may have lost a possible claim for contribution against Nationwide, the extent of recovery under which turns on the justice and equity of the circumstances, does not create the exceptional or extreme circumstance which would justify shutting out the appellant’s claims in the District Court proceedings: (at [205]).

Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197; Broxton v McClelland and Another[1995] EMLR 485 referred to

17 Although the jury verdict that Nationwide was not liable in respect of the original imputations may bar a contribution claim by the respondents against Nationwide in respect of the damage caused by the publication of those imputations by the radio broadcasts, the same conclusion may not follow for the additional imputations pleaded in relation to the radio broadcasts: (at [203]).

18 In a balancing exercise between the appellant’s right to vindicate his reputation and the respondents’ to seek contribution from Nationwide, the former should be favoured: (at [204]).

Orders

Proceedings CA 40244/08

1. Direct that the time to file the summons for leave to appeal be extended to 13 August 2008.

2. Grant leave to appeal.

3. Direct that the draft notice of appeal in the White Book stand as the notice of appeal in proceedings CA 40113/08.

Proceedings CA 40113/08

1. Appeal allowed.

2. Set aside the order made on 16 April 2008 striking out and dismissing the District Court proceedings.

3. Dismiss the respondents’ Notice of Motion dated 16 August 2006.

4. Respondents to pay the appellant’s costs of the hearing of the respondents’ Notice of Motion dated 16 August 2006.

5. Respondents to pay the appellant’s costs of the application for leave to appeal and of the appeal.

Judgment

1. GILES JA: As explained by McColl JA, with whose reasons I agree, the trial judge misapprehended what was determined in the Supreme Court proceedings. In those proceedings the republication of the radio broadcasts went to damages, as was plainly agreed by counsel before Kirby J. The judgment for the defendant did not preclude the appellant’s proceedings against the respondents. Nor, as also explained by her Honour, was prosecuting otherwise viable causes of action against the respondents in the District Court an abuse of process. The trial judge was in error, and the appeal should be upheld.

2. I agree with the orders proposed by McColl JA.

3. McCOLL JA: On 21 June 2006 the applicant, Mamdouh Habib, commenced proceedings in the District Court of New South Wales seeking to recover damages for defamation against the first respondent, Radio 2UE Sydney Pty Ltd, and the second respondent, Macquarie Radio Network Ltd, in relation to three broadcasts on the respondents’ radio stations.

4. All three broadcasts were transmitted on 18 August 2005. The first broadcast was on the “Ray Hadley Morning Show” on radio station 2GB at 10.19am, the second on the “John Laws Morning Show” on radio station 2UE at 10.33am and the third on the “Steve Price Afternoon Programme”, also on radio station 2UE at 4.07pm. Each broadcast referred to an article in the Daily Telegraph published on the same day entitled “A Stretch but Habib Wants His Pension”. The first and second respondents owned radio stations 2UE and 2GB respectively.

5. Prior to commencing the District Court proceedings, the applicant had brought proceedings in the Supreme Court against Nationwide News Pty Ltd (“Nationwide”), the publisher of the Daily Telegraph article. The respondents were not parties to the Supreme Court proceedings. In his amended statement of claim in those proceedings, the applicant also claimed damages for the three broadcasts, on the basis that Nationwide had “caused [the broadcasts] to be published”.

6. All publications having occurred on 18 August 2005, any defamation proceedings to which they were said to give rise were governed the Defamation Act 1974 (NSW) (the “1974 Act”), since repealed and, from 1 January 2006, replaced by the Defamation Act 2005 (NSW).

7. In a trial conducted in May 2006 pursuant to s 7A of the 1974 Act before Kirby J and a jury, the jury found that the Daily Telegraph article did not convey the pleaded imputations.

8. The applicant commenced the District Court proceedings after the jury verdict in the Supreme Court proceedings. On 16 April 2008, Gibson DCJ struck out and dismissed the District Court proceedings as an abuse of process and on the grounds of Anshun estoppel because of the way the applicant conducted his case against Nationwide in the Supreme Court. Her Honour also found that the applicant’s proceedings in the District Court amounted to an abuse of process by reason of the provisions of the 1974 Act and especially s 9(6): Habib v Radio 2UE Pty Ltd [2008] NSWDC 59.

9. The applicant seeks leave to appeal and, if leave be granted, to appeal from Gibson DCJ’s decision. The application for leave to appeal and the argument as on appeal were heard concurrently so that, if leave to appeal was granted, there would be no further argument.

10. The matter was originally commenced in the Court on the basis the appellant had an appeal as of right pursuant to s 127(3) of the District Court Act 1973 (NSW). However the Court drew the appellant’s attention to the fact that he needed leave to appeal as the order striking out the District Court proceedings was interlocutory: s 101(2)(e), Supreme Court Act 1970 (NSW); Re Luck [2003] HCA 70; (2003) 78 ALJR 177. Accordingly on 13 August 2008 he filed an application for extension of time with his application for leave to appeal. The respondents did not consent to the application to extend time to seek leave to appeal but did not assert they were prejudiced if leave was granted.

11. I am of the view that the case raises issues of importance which warrant extending the time in which the appellant can seek leave to appeal and granting leave to appeal. I shall refer to the applicant as the appellant hereafter.

12. For the following reasons, I am of the view that the appeal should be allowed, the decision of the primary judge set aside and the matter remitted to the District Court for hearing.

The Supreme Court proceedings 

13. In his Supreme Court amended statement of claim, the appellant alleged that Nationwide published the Daily Telegraph article and that the article conveyed the following imputations:

(a) the plaintiff is attempting to deceive Centrelink by seeking a disability pension when he is not disabled;

(b) the plaintiff is the sort of person who will try to live off Australian taxpayers even though he is fit to work. 

14. Paragraphs 4, 6 and 8 of the amended statement of claim pleaded, additionally, that Nationwide had “caused to be published” each radio broadcast on the John Laws programme (2UE), the Steve Price programme (2UE) and the Radio Hadley Programme (2GB). The amended statement of claim pleaded that each radio broadcast conveyed the same two defamatory imputations pleaded for the Daily Telegraph article.

15. The particulars of publication stated:

“(a) The article in ‘The Daily Telegraph’ of 18 August 2005 referred to in paragraph 2 was printed, published, distributed, circulated and sold by the Defendant, its servants and agents in the State of New South Wales and throughout the Commonwealth of Australia.

(b) The article in ‘The Daily Telegraph’ referred to in paragraph 2 was of a sensational nature making allegations as it did against the Plaintiff who at that time was in receipt of widespread media publicity. The Defendant knew that the article would be likely to be read by radio commentators later on the day of publication . The article was indeed read by John Laws, Steve Price and Ray Hadley. These commentators repeated the essence of what was contained in [the Daily Telegraph article] and the imputations .” (emphasis added)

16. The amended statement of claim was unverified, as permitted by the rules: Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 14.22.

17. Nationwide’s defence denied all the allegations in the amended statement of claim.

18. The s 7A trial took place before Kirby J on 23 and 24 May 2006. At that trial, only the Daily Telegraph article was put to the jury to determine whether it, as the matter complained of, conveyed the imputations of which the appellant complained, and, if it did, whether any imputation conveyed was defamatory: s 7A(3). This appears to have been because the parties accepted that the radio broadcasts were only relevant to the issue of Nationwide’s responsibility for the republication of the imputations in those broadcasts. That this was the parties approach can be gleaned from a note made by Kirby J’s associate, recording the response from Mr C Evatt, counsel for the appellant, to a query by his Honour about whether a cassette player would be required to play the radio broadcasts. That note states:

“EVATT: Your Honour’s Associate asked whether we would require a radio. I said it would not be a radio but a cassette player, however we will need neither because the three broadcasts are republication, so the issue for the jury is only the Daily Telegrapharticle.”

to which proposition Mr G O’L Reynolds of Senior Counsel, who appeared for Nationwide at the s 7A hearing, agreed. Both parties appear to have been proceeding in this respect on the basis that issues of a republication were not matters for the jury: Griffith v Australian Broadcasting Corporation [2003] NSWSC 298.

19. The jury answered “no” to the questions about whether the imputations were conveyed by Nationwide’s publication. Accordingly, Kirby J ordered a verdict in respect of each imputation and judgment for Nationwide in the action with costs. He stood the issue of republication over for further hearing. The appellant appealed unsuccessfully from the jury’s verdict: Habib v Nationwide News Pty Ltd [2007] NSWCA 91 (Ipp and Basten JJA, Handley JA dissenting) and was unsuccessful in an application for special leave to appeal to the High Court: Habib v Nationwide News Pty Ltd [2007] HCATrans 802.

20. Kirby J’s orders were not entered until 19 March 2008 apparently for the reasons which appear below and, in due course, the republication hearing was vacated. Gibson DCJ (at [24]) noted that these events occurred because the appellant took the following steps:

“(a) he appealed the jury decision (unsuccessfully: Habib v Nationwide News Pty Ltd [2007] NSWCA 91) by filing a Notice of Appeal in June 2006 and when he failed in this appeal, unsuccessfully sought leave to appeal to the High Court;

(b) he commenced proceedings in the District Court on 21 June 2006; and 

(c) on 20 September 2006 his solicitors wrote to the solicitors for the [sic, as in original – presumably Nationwide] stating the Plaintiff discontinued all three republication counts. The plaintiff and defendant have now on 6 March 2008 signed a consent judgment for the defendant with costs, terminating the Supreme Court proceedings.”

21. The judgment which was entered set out the formal details of the Case Number, the title of the proceedings, then stated:

“DATE OF JUDGMENT/ORDER

Date made or given 24 May 2006

Date entered 19 MAR 2008

TERMS OF JUDMENT/ORDER

1 Verdict for the defendant in respect of each pleaded imputation.

2 Judgment Costs for the defendant in the action, with costs ”. (emphasis added)

The Court seal of the Deputy Registrar was subscribed to the document against the date “19 MAR 2008”. 

22. The words I have italicised in order 2 were handwritten onto the document. It appears the word “Costs” in order 2 was struck through, presumably with the intention it be replaced by the word “Judgment”, whether or not that is so is obscured by another court stamp, but the order would only make sense if that were so, as the costs consequences of the judgment were also appended at the end of order 2. It is also possible that the word “pleaded” in order 1 was struck through; again a court stamp is superimposed at that point. Neither party suggested anything turned on whether or not “pleaded” had been struck out.

The District Court proceedings 

23. In the District Court statement of claim, the appellant pleaded the same two imputations against each respondent as had been pleaded in the Supreme Court proceedings, as well as additional imputations.

24. The appellant pleaded the following imputations in respect of the John Laws programme:

“3(a) The Plaintiff is attempting to deceive Centrelink by seeking a disability pension when he is not disabled. 

3(b) The Plaintiff is the sort of person who will try to live off Australian taxpayers even though he is fit to work. 

3(c) The Plaintiff is a bludger. 

3(d) The Plaintiff is dishonest. 

3(e) The Plaintiff is dishonest because he is trying to get himself a disability pension even though he is so fit he can run in the City to Surf and beat 40,000 people. 

3(f) The Plaintiff is knowingly bringing a false claim for Centrelink benefits. 

3(g) The Plaintiff falsely claimed he was depressed. 

3(h) The Plaintiff falsely claims he was physically tortured by US soldiers during his time at Camp X-ray. 

3 (i) The Plaintiff is a moron. 

3(j) The Plaintiff should be in gaol. 

3(k) The Plaintiff could be an insider working for al Qaeda. 

3(l) The Plaintiff was doing something shady when he was in Afghanistan which he should not have done. 

3(m) The Plaintiff is the sort of person who will not tell the truth. 

3(n) The Plaintiff should be condemned for not telling the truth. 

3(o) The Plaintiff should be condemned for seeking a disability allowance. 

3(p) The Plaintiff may have received money from al Qaeda to work as an insider. 

3(q) The Plaintiff does not want strict terror laws because he is a suspected terrorist. 

3(r) The Plaintiff conducted himself in such manner about being disabled and needing a disability pension that he should be deported.”

25. The imputations pleaded in respect of the Steve Price programme were:

“5(a) The Plaintiff is attempting to deceive Centrelink by seeking a disability pension when he is not disabled. 

5(b) The Plaintiff is the sort of person who will try to live off Australian taxpayers even though he is fit to work. 

5(c) The Plaintiff is a bludger. 

5(d) The Plaintiff received a pension when he was not entitled to it. 

5(e) The Plaintiff is a leech on Australia. 

5(f) The Plaintiff falsely claims he is suffering clinical depression because he was able to run in the City to Surf in fast time. 

5(g) The Plaintiff should be condemned for seeking a disability pension.”

26. Finally, the imputations pleaded in respect of the Steve Price programme were:

“7(a) The Plaintiff is attempting to deceive Centrelink by seeking a disability pension when he is not disabled. 

7(b) The Plaintiff is the sort of person who will try to live off Australian taxpayers even though he is fit to work. 

7(c) The Plaintiff is a bludger. 

7(d) The Plaintiff demanded access to disability support pension to which he was not entitled. 

7(e) The Plaintiff is a grub who does not deserve a disability pension. 

7(f) The Plaintiff should be condemned for seeking a disability pension. 

7(g) The Plaintiff is an idiot. 

7(h) The Plaintiff is dishonest because he is trying to get his hands on a disability pension to which he is not entitled. 

7(i) The Plaintiff falsely claims he suffers clinical depression. 

7(j) The Plaintiff is trying to live off taxpayers by applying for a disability pension to which he is not entitled. 

7(k) The Plaintiff falsely claims he is unfit to work.”

I shall refer to the imputations pleaded in the Supreme Court proceedings as “the original imputations” and to those not pleaded in the Supreme Court proceedings as “the additional imputations”. 

27. On 16 August 2006, the respondents filed a notice of motion in the District Court seeking orders that the proceedings be dismissed pursuant to r 13.4, alternatively r 14.28, of the UCPR on the basis that they were an abuse of process.

The primary judgment 

28. The respondents contended at trial that the District Court proceedings were an abuse of process, as the primary judge explained (at [27]) substantially for the following reasons:

(a) By foregoing any opportunity for a jury hearing in the Supreme Court proceedings, the appellant was limiting his case to damages. As the jury found there were no imputations conveyed by Nationwide, the whole action, including any claim for damages for republication failed; once the jury’s verdict was delivered, the Supreme Court was “functus” and Kirby J should not have adjourned the republication issue; 

(b) the respondents were irreparably prejudiced because the effect of the jury verdict in the Supreme Court proceedings was that they could not seek contribution against Nationwide in the District Court proceedings; 

(c) by reason of Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589.

29. Her Honour noted that an argument based on the proposition that commencing the District Court proceedings while the proceedings in the Supreme Court (and an appeal therefrom) were on foot amounted to an incurable abuse of process because the plaintiff had a “complete remedy” in the Supreme Court proceedings appeared to have been abandoned once the consent judgment was entered in the Supreme Court: primary judgment (at [27](b)). The respondents dispute that they abandoned this point, indeed it was their principal argument on appeal, as I shall explain.

30. The primary judge made a number of findings which appeared to favour the appellant. She held (at [15], [65]) that defendants cannot dictate to a plaintiff who should be sued and that a plaintiff can, subject to statutory restrictions, sue whoever he chooses, for publication or republication: Goldsmith v Sperrings [1977] 1 WLR 478 (at 507) per Bridge LJ. She accepted (at [17]) that the tactics involved in a s 7A trial “are complex”, and “[i]t is readily understandable that a plaintiff may prefer to have the jury hear only one address from one defendant rather than three addresses from three separate defendants. She also accepted (at [27](b)) that “if proceedings had wrongly been commenced in [the District Court] while other proceedings were still on foot in another court, and those proceedings were later discontinued or concluded, this cannot render these proceedings so tainted by irregularity as to require their being permanently stayed”. She acknowledged (at [53]) that “[t]he unique nature of defamation must be taken into account [and that] [i]t may not be realistic to require a plaintiff who may have been defamed by a number of defendants to sue them all in the one set of proceedings”.

31. The primary judge also referred to two matters which were not the subject of submissions: the discussion in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 “about the statutory duty imposed on courts in civil procedures generally (by the Civil Procedure Act 2005 (NSW) and by the Defamation Act 1974 (NSW) (and 2005) in particular” and the reference to abuse of process in s 9(6) of the 1974 Act: primary judgment (at [31]).

32. The primary judge first considered how the Supreme Court proceedings were conducted. She noted (at [33]) that the reason the radio broadcasts did not go to the Supreme Court jury was “by agreement of the parties”, Kirby J having been told “these publications were not to go to the jury because they were ‘republications’ ”. While she accepted (at [22], [33] - [34]) that the issue of republication was governed by Griffith (a decision which she opined (at [34]) was “open to consideration”), she rejected (at [35]) the proposition, apparently advanced by both the respondents and the appellant, that in the Supreme Court proceedings the appellant was only relying upon the three radio broadcasts as going to damages. Her Honour concluded (at [36], [40]) that:

“36. The question before Kirby J, if the jury had found one or both of the imputations conveyed, was whether each of the broadcasts conveying the imputation(s) did so as a natural and probable consequence of the original publication ( Speight v Gosnay (1890) 60 LJQB 231).

… 

40. The reason these issues were before Kirby J, the s 7A judge, was that his Honour had to deal with the republication issue as part of the s 7A trial. In other words, these republications formed part of the proceedings as to the issue of publication, but in circumstances where the parties had agreed that this part of the publication issue would go to the trial judge and not the jury. If the contents of these publications went only as to damages, then they would have been irrelevant to the proceedings before Kirby J because they would only have formed part of the later trial on liability and damages.”

33. The primary judge then considered the respondents’ claims concerning abuse of process. She identified (at [45]) the first issue as whether it was “an abuse of process to bring proceedings over a publication which contain[s] imputations largely identical to those in the article (which the jury found not to be conveyed)”. She noted (at [48] – [52]) that similarity between, I assume Nationwide’s and the respondents’ publications and imputations “even to a high degree” was not, of itself, sufficient to amount to grounds for a stay for abuse of process, referring to The Age Corporation v Beran [2005] NSWCA 289. However, she distinguished in Beran in two respects (at [54]): first, because in Beran there was no republication claim; and secondly, because “the two publications [in Beran]did not refer to each other to the very high degree that occurred here”.

34. The primary judge then considered (at [55]) whether by virtue of the inclusion of the republication pleading in the Supreme Court proceedings or by reason of the “very highly similar nature of the publications”, the appellant could not bring the District Court proceedings. She set out (at [56]) the respondents’ argument that that the matters raised in the District Court proceedings could, or should, have been raised in the Supreme Court proceedings (for which purposes they referred to Anshun), even though the District Court defendants were not a party: Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 (at 590). They contended that the republication claims were, by agreement, determined in the Supreme Court proceedings on the merits, and secondly that if they were not, then the degree of similarity between the Nationwide and radio publications was such as to give rise to cause of action estoppel: (according to her Honour’s note of the argument at [64]), or, it seems issue estoppel because of the need for there to be “an end to litigation”. There appears to have been little focus in the respondents’ submissions before the primary judge on the requirement for privity of interest to establish cause of action and issue estoppel, matters I address later in these reasons.

35. In considering this argument the primary judge (at [57]) noted what she described as the following similarities and differences between the Nationwide and radio publications:

“(a) the plaintiff pleaded in the Supreme Court that each conveyed identical imputations and while additional imputations have now been pleaded, there is a high overlap between most of these imputations and those unsuccessfully pleaded against the Daily Telegraph ;

(b) they were all published over a period of about 12 hours in the one day;

(c) the content of the article in the Daily Telegraph is not only specifically and repeatedly referred to in each of the matters complained of, but its contents are summarised. It is the factual material upon which the defendants’ comment is based;

(d) as to differences, there is a very limited amount of what might be called new material:

(i) Annexure B [John Laws broadcast] contains the assertion that the plaintiff said it was not ‘their own people’ who flew into the World Trade Centre towers, comments on his bad grammar and calls on the Minister for Education to stop the plaintiff speaking in schools;

(ii) Annexure C [Steve Price broadcast] refers to him commencing defamation proceedings against newspapers who call him a suburban terrorist;

(iii) Annexure D [Ray Hadley broadcast] complains the plaintiff when lecturing to students does not mention the events of September 11.”

36. The respondents also argued that the appellant had waived his right to a jury finding concerning what imputations were conveyed by the radio publications by agreeing that the jury’s findings be restricted to the imputations conveyed in the Daily Telegraph article. They argued that as Kirby J could not determine what imputations the radio publications conveyed - because this was the task of the jury (s 7A(3)) - the issue Kirby J would have had to determine was whether Nationwide was liable for the republication of its article: see primary judgment (at [59]).

37. With respect to the first limb of this argument, her Honour stated (at [61]):

“61. In practical terms, the only explanation for the plaintiff agreeing to Kirby J determining the issue of republication was that the plaintiff was treating each of the three radio broadcasts as being republications in the same way that they were treated in Griffiths . In other words, the plaintiff consented to a course of conduct of the trial in the Supreme Court which meant that the plaintiff stood - or fell - by the imputations pleaded as arising in the Daily Telegraph . The jury verdict for the defendant on the Daily Telegraph meant that the same finding had to be made concerning the imputations conveyed by the three radio broadcasts. The failure of these imputations for the [sic, as in original] accordingly means, because of the way the case was conducted in the Supreme Court, that these imputations also failed on the republication argument, to put it simply.”

38. Her Honour also concluded, on what she describes as the respondents’ “subordinate Anshun submission” (at [63]) that the consent judgment in favour of Nationwide for all pleaded imputations confirmed her view that the appellant conducted the Supreme Court proceedings on the basis that the imputations conveyed in the radio broadcasts were the same as those conveyed by the Daily Telegraph.

39. The primary judge appeared at first to have rejected the respondents’ Anshun estoppel argument, as she said:

“65. In my view, this argument fails to appreciate the unique nature of defamation. A plaintiff can, subject to statutory restrictions, sue whoever he chooses, for publication or republication, for the reasons explained in Goldsmith v Sperrings(supra). The plaintiff did not have to commence proceedings in the Supreme Court for all the publications. He could have commenced proceedings in the Supreme Court against Nationwide News Pty Limited and not included these other causes of action at all. He was not obliged to litigate all these publications in the same action. When he lost those proceedings, he could have, as Dr Beran did, commenced proceedings in the same or another court, or even another State, subject to challenges based on provisions in the Defamation Act 1974 (NSW). Consequently this challenge must fail.”

40. The primary judge then considered whether provisions in the 1974 Act which in her view prevented collateral use of defamation proceedings would warrant striking out the proceedings. She expressed the view (at [70] – [73]) that legislative concern regarding potential abuse of process through the institution of collateral defamation proceedings was reflected in a number of provisions of the 1974 Act, namely ss 3(d), 7A, 9(3), 9(6)(b), 48 and 48A, as well as in the New South Wales Law Reform Commission’s report on the 1974 Act (New South Wales, Law Reform Commission, Defamation (1971)) and the Second Reading Speech to the Bill: New South Wales Legislative Assembly, Parliamentary Debates, (Hansard), 27 February 1974 (at 848 – 850).

41. The primary judge referred to s 9(6)(b) which states that s 9(3) does not affect the powers of the court in the case of “vexatious proceedings or abuse of process” and observed (at [74]):

“… the language of s 9(6) does not appear to me to be restricted to giving rights to parties who have already been sued. It must also apply to parties who were not joined in the original litigation, if those circumstances, while falling short of res judicata (as the Law Reform Commission note at paragraph 51) are so manifestly unjust as to amount to abuse of process.” 

42. Her Honour concluded (at [76]):

“The plaintiff in these proceedings has lost his cause of action against Nationwide News Pty Limited over the publication which is the lion’s share of each of these matters complained of. Each of these matters complained of was published within hours of the article in the Daily Telegraph and each of them repeats and endorses what was said in that publication. The fundamental purpose of civil defamation proceedings is to vindicate and protect the reputation of the person defamed ( Packer v Meagher [1984] 3 NSWLR 486 at 492E). To unscramble the omelette and award the plaintiff damages for the publication of the same or similar imputations, published on the same day as the publication which a jury held did not defame him, is an exercise in absurdity. It is particularly so in circumstances where the plaintiff was content to regard these additional publications as being publications for which the Daily Telegraph was liable.” 

Her Honour’s statement that the jury had held the Nationwide imputations did not defame the appellant was not correct. The jury found that those imputations were not conveyed and, accordingly, did not consider the question whether, if they had been conveyed, they defamed the appellant. 

43. The primary judge (at [77]) noted that she had found that the way the appellant conducted his case the Supreme Court proceedings amounted to an Anshun estoppel (a statement which is difficult to understand in the light of her statement at [65]), and added:

“Whether or not the plaintiff waived his right to a separate jury verdict, or entered into a consent judgment which amounts to an Anshun estoppel, the plaintiff has brought proceedings in this court which, by reason of the provisions in the Defamation Act1974 referred to above (and especially s 9(6)) amount, separately, to abuse of process”.

44. The primary judgment is diffuse, and, with respect, does not readily reveal the basis upon which the primary judge concluded that District Court proceedings were an abuse of process such that they should be struck out. The primary judge said (at [30]) that “[s]ince both parties appear to anticipate developing their arguments in more detail on appeal, I have dealt with their arguments in a similarly brief fashion”. It is regrettable that both the parties, and her Honour, appear to have dealt with the matter as if it was a dress rehearsal for appeal. It is inappropriate for counsel not to present argument fully at trial. The duty of parties to raise all arguments, whether of fact or law, at a trial level and the perils to which failure to comply with that duty is well known: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1. It is essential to the proper administration of justice that a judge’s reasons make clear the basis for the judge’s decision. Reviewing the primary judgment in this case was not assisted by the difficulty in discerning the reasons for her Honour’s conclusions.

45. However, in summary, it appears that the gist of her Honour’s reasons for concluding the District Court proceedings were an abuse of process was:

(a) the appellant was not relying upon the republication of the original imputations on the radio broadcasts as going only to damages (at [35]); 

(b) by agreeing to Kirby J determining the issue of republication, the appellant consented to the jury verdict in respect of the Daily Telegraph article being taken to have determined whether or not the imputations pleaded in respect of the radio broadcasts were carried (see [35], [40], [61]); 

(c) The jury verdict meant that the original imputations were not conveyed both by Daily Telegraph article and by the radio broadcasts; and that constituted, in substance, a hearing on the merits of the question whether the original imputations were conveyed by the radio broadcasts (see [61], [63], [64]); 

(d) the District Court proceedings were brought in relation to imputations “largely identical” to those in the Daily Telegraph article, which the jury had found not to be conveyed (at [45]);

(e) there was “a high overlap between most of [the additional imputations] and those unsuccessfully pleaded against the Daily Telegraph ” (at [57](a));

(f) there was a high degree of similarity between the Daily Telegraph article and the radio broadcasts and a limited amount of “new material” in the latter ([57](c) – (d)); 

(g) the appellant had lost the Nationwide proceedings in respect of publications which were “the lion’s share” of each of the radio broadcasts; it would be manifestly unjust to award the appellant in the District Court proceedings damages for the publication of the same or similar imputations published on the same day as a publication which a jury had held did not defame him, particularly in circumstances where the appellant “was content to regard these additional publications as being publications for which the Daily Telegraph was liable” (at [76], [77]).

46. Following the hearing of the appeal, the respondents provided a Notice of Contention to the Court. That document arguably went beyond the argument advanced orally. It also, to some extent, raised points which the primary judge had resolved in the respondents’ favour. It is unnecessary to set out its terms in detail. These reasons deal with all the points it raised.

Grounds of appeal 

47. The appellant’s grounds of appeal contend that the primary judge erred:

(a) by striking out the proceedings commenced by the appellant against the respondents in the District court proceedings as an abuse of process; 

(b) in finding that the way the appellant conducted his case against Nationwide in the Supreme Court amounted to an Anshun estoppel. 

(c) in failing to give proper or any reasons as to the basis on which she found Anshun estoppel and abuse of process. 

(d) in finding that either the appellant waived his right to a separate jury verdict in the Supreme Court or entered into a consent judgment amounting to an Anshun estoppel; 

(e) in finding that the appellant’s proceedings in the District Court amounted to an abuse of process by reason of the provisions in the 1974 Act and especially s 9(6). 

(f) in not finding that the appellant was entitled to continue his defamation claim against the respondents in the District Court. 

Submissions 

48. Mr C A Evatt, who appeared with Mr R Rasmussen for the appellant on the strike-out motion and on appeal, submitted that the primary judge’s reasons did not disclose why she concluded there was an Anshun estoppel or an abuse. He argued that her Honour’s conclusion that the District Court proceedings were an abuse of process was based on an inaccurate characterisation of the way the appellant’s case had been run in the Supreme Court proceedings, and of the law in relation to cumulative remedies.

49. Mr Evatt took issue with her Honour’s findings (at [61] of the primary judgment) that the only explanation for the appellant agreeing to remove the issue of republication from the jury was that the appellant was consenting to a course of conduct in which his case on all four publications relied on the imputations pleaded as arising in the Daily Telegraph article. Rather, Mr Evatt submitted that the parties were bound by Griffith to remove the republication issue from the jury. Therefore he contended the primary judge’s conclusion that the reason that the three radio broadcasts did not go to the Supreme Court jury was “by the agreement of the parties” was incorrect. He argued the appellant did not waive his right to a separate jury verdict in respect of the radio broadcasts because republication was not for the jury.

50. Mr Evatt submitted that even if the appellant had succeeded in the Supreme Court proceedings in establishing that the imputations were conveyed by the Daily Telegraph article, he may not have succeeded in establishing that the radio broadcasts were republications because of the altered form and different words used in those broadcasts. Alternatively, he contended that even if the appellant had succeeded entirely in the Supreme Court proceedings, including establishing the republication issue, and been awarded damages, he would still have been entitled to bring the District Court proceedings, not only for the additional imputations, but also in respect of the two original imputations. The original imputations, he contended, could have been taken into account by a judge determining damages, had the respondents relied upon s 48 of the 1974 Act to claim mitigation of damages on the basis that the appellant had already either recovered damages or brought proceedings for damages in respect of those imputations.

51. Mr Evatt further submitted that as a matter of logic, the jury’s verdict in the s 7A trial that the Daily Telegraph article did not convey the pleaded imputations meant that it could be hardly argued that the Daily Telegraph article caused the same imputations to be republished in the three radio broadcasts. Thus, while the appellant had failed to establish in the Supreme Court proceedings that either of the two imputations alleged was conveyed by the Daily Telegraph, Mr Evatt contended this did not mean that the imputations were not conveyed by the radio broadcasts, but merely that they were not conveyed by way of republication in the radio broadcasts.

52. Mr Evatt argued that the primary judge erred (at [76]) in concluding that allowing the appellant to pursue the District Court proceedings would be “an exercise in absurdity”. He contended her Honour had failed to apply the principle that a plaintiff is not required to choose between his or her remedies, and may pursue one or the other, or both, as he or she wishes: Harris v 718932 Pty Ltd [2003] NSWCA 38; (2003) 56 NSWLR 276 per Handley JA (at [24]).

53. Next, Mr Evatt took issue with the primary judge’s finding (at [74]) that even if the circumstances fell short of res judicata, the proceedings could be “so manifestly unjust as to amount to abuse of process”. He contended there could be no injustice to the respondents in the circumstances and that nothing in the Supreme Court proceedings affected them “one way or the other”. He made this submission in respect to the District Court proceedings in their entirety, but emphasised that many of the imputations pleaded against the respondents were substantially different to those pleaded against Nationwide and each created a different cause of action.

54. Mr Evatt argued that the primary judge erred in distinguishing Beran. He contended first, that the dissimilarity between the Nationwide and radio publications was greater than the dissimilarity between the two publications in Beran. Secondly, unlike Beran, he pointed out there had been no determination by a judge or jury on the radio broadcasts. Even if there had been such a finding in relation to the original imputations, it could not apply to the additional imputations.

55. Mr Evatt also submitted that Anshun estoppel could not prevent the appellant from commencing proceedings against parties who were not joined in the Supreme Court except in limited circumstances where an extended res judicataprinciple applied, such as in the case of joint tortfeasors.

56. Finally, Mr Evatt submitted that s 9(6)(b) of the 1974 Act “on its own” could not entitle the primary judge to find an abuse of process. He argued that the verdict in the Supreme Court proceedings did not mean there was an estoppel in respect of any imputations published by the respondents, merely that the republication counts failed as the radio broadcasts could not have republished imputations the jury found were not conveyed by the Daily Telegraph article.

48. Mr Reynolds, who appeared with Mr M G Lynch for the respondents on appeal but not at trial, contended that the Supreme Court and District Court proceedings were an abuse of process in the light of what he described as the following “working proposition”: where several persons are responsible for the publication of identical material, and an action is brought against one of the publishers which proceeds to judgment or is settled, then any further action against other persons responsible for the publication is an abuse of process.

49. Mr Reynolds contended his working proposition was effectively the basis on which the primary judge had reached her decision, but ultimately accepted that he was proceeding with a notional notice of contention argument and agreed the respondents should file a notice of contention to accord with his working proposition.

50. Mr Reynolds submitted that his working proposition, which he accepted was not immutable, was supported in particular, by Thomson v Lambert [1938] 2 DLR 545, which he noted was referred to with approval in Harris v 718932 Pty Ltd [2000] NSWSC 784 (at [21]), Dow Jones v Gutnick [2002] HCA 56; (2002) 210 CLR 575 (at [36]) and Meckiff v Simpson (1968) VR 62 (at 65).

51. Mr Reynolds argued that the first limb of his working proposition was established by the fact that the appellant sued Nationwide in the Supreme Court proceedings as having published both the Daily Telegraph article and the radio broadcasts, the latter being identical with the radio broadcasts in respect of which he sought to sue in the District Court proceedings. He relied on the fact that the Supreme Court amended statement of claim pleaded that Nationwide had “caused to be published” each radio broadcast, that being, he contended, the language of publication rather than republication: Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331 (at 364) per Isaacs J; cf Speight v Gosnay (1891) 60 LJQB 231. He elaborated upon this proposition by saying that the case pleaded against Nationwide, insofar as the radio broadcasts were concerned, was, analogically, a form of accessorial liability for the publications by the respondents.

52. Mr Reynolds submitted that it did not matter that the imputations pleaded in the Supreme Court proceedings and those pleaded in the District Court proceedings were different, referring to Beran (at [49]) where Hodgson JA (with whom Beazley JA and Brownie AJ agreed) opined that it could be an abuse of process for a plaintiff to seek to re-litigate lost issues against, a different party, being a person in the category of author or distributor, “even if the Plaintiff sought to plead the imputations a little differently”. He also sought to distinguish Beran by pointing out that Hodgson JA in that case focused on the difference in the publications, not the difference in the imputations as the basis for allowing a subsequent defamation action against The Age for an article similar to one on which judgment was already obtained.

53. Mr Reynolds submitted that to determine how the case had been run in the Supreme Court it was necessary to look first, and primarily, at the way the case was pleaded. He also contended the Court could not draw the conclusion that the Supreme Court proceedings had been run on the basis that Nationwide was only liable for the radio broadcasts as a re-publisher, even though, as was apparent from the note by Kirby J’s associate that counsel for Nationwide accepted Mr Evatt’s statement that, in substance, the only issue for the jury was the Daily Telegraph article “because the three broadcasts are republication”. He contended that the Court should not try “to read a lot into” the associate’s note, which he submitted only amounted to Nationwide’s counsel accepting that the case against Nationwide based on publication of the radio broadcasts was going to be a matter for the judge.

54. Mr Reynolds also argued that, in any event, it did not matter for the purpose of his working proposition whether the Supreme Court proceedings had been pleaded (or conducted) as one of Nationwide being responsible for the publication or republication of the radio broadcasts. It was sufficient that Nationwide had been sued as being “responsible” for the radio broadcasts, which were the identical matters the subject of the District Court proceedings.

55. As to the second limb of his working proposition, Mr Reynolds submitted that the effect of the jury verdict in the Supreme Court proceedings and the consent judgment entered in respect of the entirety of the proceedings, was that the appellant abandoned running any case based on the liability of Nationwide as publisher of the radio broadcasts. He submitted that the consent judgment on the entirety of the appellant’s Supreme Court case was analogous to the settlement of cases in Thomson v Lambert and Schellenberg v BBC [2000] EMLR 296.

56. Mr Reynolds drew attention to the discussion in P Milmo and W V H Rogers, Gatley on Libel and Slander, 11th ed (2008) Sweet & Maxwell (“Gatley”) (at 32.42), concerning the application of the principles of abuse of process to ensure finality. He referred to what he described as the leading case, Schellenberg, and to Burtonshaw v BBC (1978) NLJ 483 which he contended supported his working proposition.

57. Mr Reynolds argued that the appellant would suffer no injustice if denied a further opportunity to seek damages in respect of the radio broadcasts in circumstances where he abandoned the opportunity to pursue the respondents in the Supreme Court action, waived his right to a jury determination as to the imputations carried by the radio broadcasts and consented to a verdict for Nationwide in respect of all pleaded imputations. He also argued it would not be unjust to deny the appellant the opportunity to seek relief in respect of additional imputations not reasonably encapsulated within those pleaded in the Supreme Court, because, in substance, so few of the additional imputations could be said to fall into that category.

58. In contrast, Mr Reynolds contended that there would be an injustice to the respondents if the District Court proceedings were permitted to continue as they could not seek contribution or indemnity from Nationwide pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) in respect of any liability for damages they may have for the radio broadcasts as, by virtue of the verdict in the Supreme Court proceedings, Nationwide was no longer a “tortfeasor … liable in respect of the same damage”.

59. In reply, Mr Evatt reiterated that the Supreme Court proceedings, insofar as they concerned the radio broadcasts, were pleaded and conducted as a republication case. He distinguished Webb v Bloch as being a case dealing with only one, not several, publications and Thomson v Lambert as involving the same publication but different distributors.

Consideration

69. It is convenient to commence with some general propositions which set the framework for the determination of the issues. That framework, reduced to the most essential propositions, is found in a person’s right to pursue legal remedies, and the public interest in both the finality of litigation and preserving confidence in the administration of justice.

70. A plaintiff with cumulative remedies is not required to choose between them and may have both: Tang Man Sit v Capacious Investments Ltd [1996] AC 514 (at 522) per Lord Nicholls of Birkenhead, delivering the judgment of the Privy Council; cited with approval by Gleeson CJ and Callinan J in Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635 (at [39]).

71. However, in Dow Jones (at [36]), Gleeson CJ, McHugh, Gummow and Hayne JJ observed (footnotes added):

“Clearly, the common law favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings. The principles of res judicata [ Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446], issue estoppel [ Blair v Curran [1939] HCA 23; (1939) 62 CLR 464], and what has come to be known as Anshun estoppel [ Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589], all find their roots in that policy. Effect can be given to that policy by the application of well-established principles preventing vexation by separate suits [… in relation to defamation, see also Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 at 100-102; Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519 at 537; Meckiff v Simpson [1968] VR 62 at 65 and [1968] VR 69; Thomson v Lambert[1938] 2 DLR 545] or, after judgment, by application of the equally well-established principles about preclusion, including principles of Anshun estoppel.”

72. Res judicata “is a broad rule of public policy based on the principles expressed in the maxims ‘interest reipublicae ut sit finis litium’ and ‘nemo debet bis vexari pro eadem causa’ ”: Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 (at 466) per Fullagar J. In Rogers v R [1994] HCA 42; (1994) 181 CLR 251 (at 273) Deane and Gaudron JJ described the first of the Latin maxims to which Fullagar J referred as expressing “the need, based on public policy, for judicial determinations to be final, binding and conclusive [while] [t]he second looks to the position of the individual and reflects the injustice that would occur if he or she were required to litigate afresh matters which have already been determined by the courts”. They added that there was a related principle, “likewise fundamental, … embodied in the Latin maxim res judicata pro veritate accipitur [which] gives expression to … the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct”. They described the principle as “essential for the maintenance of public respect and confidence in the administration of justice”.

73. The doctrine of res judicata properly so-called (the first principle referred to in Dow Jones) applies where a plaintiff establishes his cause of action so that, upon judgment, the cause of action and any matters which were necessarily established as its legal foundation or as the justification for its conclusion, or were legally indispensable to the conclusion merge in the judgment, and no longer have an independent existence and cannot be re-litigated in subsequent proceedings between the parties of their privies: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 (at 531 – 532) per Dixon J; Anshun (at 597) per Gibbs CJ, Mason and Aickin JJ; Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21; (1988) 164 CLR 502 (at 508) per Deane, Toohey and Gaudron JJ; James Hardie and Co v Seltsam Pty Ltd [1998] HCA 78; 196 CLR 53 (at [40]) per Gaudron and Gummow JJ.

Estoppel per rem judicatam 

74. The doctrine of res judicata is not confined to cases in which judgment is entered in favour of a plaintiff. As Giles JA (with whom Tobias JA and Cripps AJA agreed) explained in Abigroup Contractors Pty Ltd v ABB Service Pty Ltd (formerly ABB Engineering Construction Pty Ltd) [2004] NSWCA 181 (at [143]):

“[143] Res judicata is not a single doctrine. … Where a plaintiff fails to establish his cause of action and there is judgment for the defendant, there is nothing to pass into judgment and the judgment operates as an estoppel . It is the estoppel per rem judicatam described by Diplock LJ in Thoday v Thoday (1964) P 181 at 197–8:

… The particular type of estoppel relied upon by the husband is estoppel per rem judicatam . This is a generic term which in modern law includes two species. The first species, which I will call 'cause of action estoppel', is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, ie, judgment was given upon it, it is said to be merged in the judgment, or for those who prefer Latin, transit in rem judicatam. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam. This is simply an application of the rule of public policy expressed in the Latin maxim 'Nemo debet bis vexari pro una et eadem causa '. In this application of the maxim 'causa' bears its literal Latin meaning. The second species, which I will call 'issue estoppel', is an extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action . If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was .” (Emphasis added)

75. Estoppel per rem judicatam or "cause of action estoppel", can be “pleaded in bar whenever in a proceeding of a court of competent jurisdiction between the same parties or their privies an issue has been once taken and found … [and] is then concluded between the parties taking it and their privies according to the finding thereof so as to estop the parties from again litigating that fact once so tried and found”: Jackson v Goldsmith (at 460) per Williams J; see also (at 467) per Fullagar J.

Issue estoppel 

76. In order to establish Diplock LJ’s second species of estoppel per rem judicatam, issue estoppel (the second principle referred to in Dow Jones), it is necessary, as Lord Guest stated in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 (at 935):

“(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies."

His Lordship’s statement was cited with approval by the Full Court (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ) in Kuligowski v MetroBus [2004] HCA 34; 220 CLR 363 (at [21]); see also Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 (at 412) per Gummow J referring with approval to Carl Zeiss (at 909 - 910) per Lord Reid.

77. In the Full Court’s view in Kuligowski (at [40]) Barwick CJ encapsulated what was involved in answering Lord Guest’s first question in Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271 (at 276) as follows:

“Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case .” (Emphasis added)

Abuse of process 

78. The term “abuse of the process of the Court” (of which Anshun estoppel, the third principle referred to in Dow Jones, forms part) is used in many senses. What amounts to abuse of court process is insusceptible of a formulation comprising closed categories: Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256 (at [1], [9]) per Gleeson CJ, Gummow, Hayne and Crennan JJ. While accepting this proposition, in PNJ v R [2009] HCA 6; (2009) 83 ALJR 384 (at [3]), French CJ, Gummow, Hayne, Crennan and Kiefel JJ said that many cases of abuse of process exhibited at least one of three characteristics:

“(a) the invoking of a court’s processes for an illegitimate or collateral purpose;

(b) the use of the court’s procedures would be unjustifiably oppressive to a party; or

(c) the use of the court’s procedures would bring the administration of justice into disrepute.”

79. The power to stay proceedings permanently on the ground that they are an abuse of process should be exercised with caution (Moore & Ors v Inglis (1976) 50 ALJR 589 (at 593) (upheld on appeal (1976) 51 ALJR 207) per Mason J (as his Honour then was)) and only in the most exceptional or extreme case: Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 (at 392) per Mason CJ, Deane and Dawson JJ (approving the Court of Appeal’s formulation of the test in Gill, Herron and Gardiner v Walton (1991) 25 NSWLR 190). The onus of satisfying the court that there is an abuse of process lies upon the party alleging it, it is “a heavy one”: Williams v Spautz[1992] HCA 34; (1992) 174 CLR 509 (at 529) per Mason CJ, Dawson, Toohey and McHugh JJ.

80. A decision to stay or dismiss proceedings on the basis that they are an abuse of process involves the exercise of discretion in the sense that “although there are some clear categories, ‘the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse’ ”. Accordingly “as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration”: Batistatos (at [7]) referring to R v Carroll [2002] HCA 55; (2002) 213 CLR 635 (at [73]) per Gaudron and Gummow JJ.

Anshun estoppel

81. The principle commonly referred to as Anshun estoppel, established in Henderson v Henderson (1843) 3 Hare 100; [1843-60] ER 313(at 319)), involves an extended doctrine of res judicata. It operates “not only [in respect of] points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time”: Anshun (at 598) per Gibbs CJ, Mason and Aickin JJ. There will be an estoppel if it appears that “the matter relied upon … in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it”: Anshun (at 602). The test is one of reasonableness. Gibbs CJ, Mason and Aickin JJ rejected (at 602) Lord Kilbrandon’s formulation of the test in Yat Tung (at 590) that it was “an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings”.

82. Thus Anshun estoppel introduces “an evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings”; it is “allied to, but not co-extensive with, res judicata and issue estoppel”: Spalla v St George Finance Ltd (No 6) [2004] FCA 1699(at [64] - [65]), referring to Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 (at 295) (Full Federal Court).

190. It is important to recall the Anshun/Reichel considerations. Significantly the issue whether the respondents were liable as publisher of the radio broadcasts for either the original or the additional imputations has never been “fully litigated” (Stenhouse), “properly argued” or “lost” (Haines; O’Halloran). The appellant is not seeking to raise in the District Court proceedings “the very same question” which has been decided in the Supreme Court proceedings: cf Kuligowski. An outcome favourable to the appellant will not lead to the existence of contradictory judgments.

Tactical considerations 

200. At the conclusion of his submissions in reply Mr Evatt commented that had the appellant succeeded in the Supreme Court proceedings “it may be that this action would never have been started against the radio broadcasts”, but that the fact that he lost the Supreme Court proceedings meant no issue of republication was available. Mr Reynolds invited the Court to note that remark, then included a reference to it in the notice of contention. It is not clear why he did so. That statement, on its own, did not establish that the District Court proceedings were an abuse of process. It was accepted in Anshun (at 603) as I have said, that there are a variety of, in effect, tactical considerations which might legitimately justify a party in refraining from litigating an issue in one proceeding where it would not be an abuse of process to litigate it in another. The primary judge appeared to accept this when she made what I have referred to above (at [30]) as findings which appeared to favour the appellant, findings with which I substantially agree.

Law Reform (Miscellaneous Provisions) Act

201. This leaves only for consideration the respondents’ claim that the District Court proceedings are an abuse of process because, if allowed to continue, they will be prejudiced in being unable to claim contribution from Nationwide pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act. It is unnecessary to rehearse that well-known provision. It is germane to record that in any proceedings for contribution pursuant to s 5(1)(c), the amount of the contribution recoverable from any person is 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: s 5(2).

202. “Damage” in s 5(1)(c) is not to be equated to the “damages” awarded by a court, but is what the plaintiff suffers as the foreseeable consequence of the tortfeasor's act or omission. Where a tortfeasor's negligent act or omission causes personal injury, “damage” includes both the injury itself and other foreseeable consequences suffered by the plaintiff. Concurrent tortfeasors whose negligent acts or omissions occur successively, rather than simultaneously, may both be liable for the same damage in the s 5(1)(c) sense, being a foreseeable consequence of both torts, although one is liable for some only of the damage for which the other is liable and an award of damages against the one would necessarily be less than an award of damages against the other: Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 (at 527).

203. There was no suggestion that Nationwide and the respondents had combined to publish the Daily Telegraph article and the radio broadcasts so as to be joint tortfeasors: Thompson v Australian Capital Television Pty Ltd and Others [1996] HCA 38; (1996) 186 CLR 574 (at 580 - 581) per Brennan CJ, Dawson and Toohey JJ. It is arguable, however, that, if it had been found that the original imputations were conveyed by the Daily Telegraph article and if their republication in the radio broadcasts (assuming that fact also will be found) was a foreseeable consequence of the publication of the Daily Telegraph article, the separate publications could produce the same damage (in the sense of harm to the appellant’s reputation) so that they were concurrent tortfeasors: Glanville L Williams, Joint Torts and Contributory Negligence, (1951) Stevens & Sons Limited (at 1). It may be, therefore, that the jury verdict that Nationwide was not liable in respect of the original imputations would bar a contribution claim by the respondents against Nationwide in respect of the damage caused by the publication of those imputations by the radio broadcasts. However, the same conclusion may not follow to the extent that the appellant establishes any of the additional imputations. This matter was not debated in argument and should not, in my view, be further considered in the absence of any findings and/or argument about the substratum of fact necessary to establish the respondents have been fully deprived of any contribution claim by virtue of the outcome of the Supreme Court proceedings.

204. In any event, if a balancing exercise has to be undertaken between the appellant’s right to vindicate his reputation and the respondents’ to seek contribution from Nationwide I would favour the former. Only in the most clear case will it be appropriate upon preliminary application to strike out proceedings as an abuse of process so as to prevent a plaintiff from bringing an apparently proper cause of action to trial: Broxton v McClelland and Another [1995] EMLR 485 (at 497-498). Where jurisdiction exists, access to the courts is a right. It is not a privilege which can be withdrawn otherwise than in clearly defined circumstances: Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 (at 252) per Deane J.

205. By allowing arguably defamatory imputations to be published about the appellant (in the case of the second respondent, twice on the same day), the respondents took the risk of being liable in damages to him: cf Dow Jones (at [192]) per Callinan J. If the appellant makes good his claims the respondents are liable as original publishers of the imputations on the radio broadcasts. The fact they may have lost a possible claim for contribution against Nationwide, the extent of recovery under which turns on the justice and equity of the circumstances, appears to me to carry somewhat less weight than preventing the appellant from pursuing his legal rights. It does not create the exceptional or extreme circumstance which would justify shutting out the appellant’s claims in the District Court proceedings.

Conclusion 

206. It is apparent from this analysis that the Daily Telegraph article and the three radio broadcasts gave rise to separate causes of action against different defendants, arising at different times (albeit on the same day). While there were similarities between the publications, they were not “the same defamatory matter”: cf Harris (at [30]). Nor do the two proceedings raise the same or identical causes of action. The causes of action against Nationwide were for its liability as original publisher of the original imputations in the Daily Telegraph article. The issues concerning the radio broadcasts only arose as a component of the appellant’s damages claim if the original imputations were republished in the radio broadcasts and if that was a foreseeable consequence of the original publication. In the District Court proceedings the causes of action are for the publication of the original and additional imputations by the radio broadcasts and the presumed damages which flow from their publication: Ratcliffe v Evans [1892] 2 QB 524.

207. To the extent the appellant included the radio broadcasts in his claim for damages in the Supreme Court proceedings, that claim was never fully litigated, or, indeed, litigated at all. His claims in respect of Nationwide’s responsibility for the foreseeable consequences of its publication of the Daily Telegraph article was not abandoned, but could not be pursued because the appellant failed to establish his s 9 cause of action, namely that the original imputations were carried by the Daily Telegraph article.

208. Permitting the appellant to pursue the District Court proceedings will not give rise to conflicting judgments as the appellant seeks to establish, inter alia, that the original and additional imputations were carried by the radio broadcasts. The question whether the original and additional imputations were carried by the radio broadcasts has never, for the reasons I have given, been the subject of any judicial determination or judgment.

209. It was not unreasonable, in the Anshun sense, for the appellant not to have joined the respondents as defendants in the Supreme Court proceedings. He had distinct defamation claims against Nationwide and the respondents in respect of different publications.

210. Further, permitting the District Court proceedings to continue will not entail duplication of court time, as no court has previously considered whether any imputation arose from the radio broadcasts. In any event, the respondents have never previously been “vexed … for the same cause”: see K R Handley, “Anshun Today” (1997) 71 ALJ 934 (at 938). In my view no issue arises which would call for the District Court proceedings to be struck out for efficiency reasons (ss 56-59 Civil Procedure Act; Dennis; Schellenberg). This is particularly so where s 48 of the 1974 Act expressly contemplates more than one set of proceedings against different defendants, even in respect of matter “to the same purport or effect” as that in respect of which damages have already been recovered.

Orders

211. Accordingly, in my view, the primary judge erred in dismissing the proceedings as an abuse of process for the reasons she gave and the respondents have not made good their notice of contention. The respondents’ motion to strike out the District Court proceedings should be dismissed.

212. The appellant’s draft notice of appeal sought, inter alia, a declaration that he was entitled to proceed with the District Court proceedings. It is unnecessary to make such a declaration. It is sufficient to allow the appeal and set aside the primary judge’s orders.

213. The following orders should be made:

Proceedings CA 40244/08 

1. Direct that the time to file the summons for leave to appeal be extended to 13 August 2008.

2. Grant leave to appeal.

3. Direct that the draft notice of appeal in the White Book stand as the notice of appeal in proceedings CA 40113/08.

Proceedings CA 40113/08

1. Appeal allowed.

2. Set aside the order made on 16 April 2008 striking out and dismissing the District Court proceedings.

3. Dismiss the respondents’ Notice of Motion dated 16 August 2006.

4. Respondents to pay the appellant’s costs of the hearing of the respondents’ Notice of Motion dated 16 August 2006.

5. Respondents to pay the appellant’s costs of the application for leave to appeal and of the appeal.

214. CAMPBELL JA: I agree with McColl JA.

**********

Schedule: the matters complained of

Supreme Court proceedings

Daily Telegraph Article: War on Terror

1. A stretch but Habib wants his pension 

2. By LUKE McILVEEN 

3. FORMER Guantanamo Bay inmate Mamdouh Habib took part in Sunday’s City To Surf fun run despite the fact he is seeking a disability pension from Australian taxpayers. 

4. Yesterday Habib was maintaining his hectic pace, addressing a meeting of radical university students, denouncing the US Government as terrorists and condemning Australia’s hardline on suspects. 

5. As our picture shows, the former terror suspect has a long way to go before convincing Centrelink that he is unfit to work. 

6. Mr Habib, who claims he suffers clinical depression, ran the City to Surf last weekend in a personal best of 82 minutes and 25 seconds. 

7. And he showed no signs of fatigue yesterday when he lectured students at the University of Western Sydney on the topic of war and terrorism, when he described the US as a “pack of terrorists”. 

8. Mr Habib finished the City to Surf in the top 20 per cent, beating 40,000 other runners. 

9. Mr Habib has been locked in a running battle with Centrelink since he was flown back to Sydney from Cuba last January, a trip which cost taxpayers $225,000. 

10. He demanded access to a disability pension but was told he would have to reimburse taxpayers for $11,000 in overpayments. 

11. In 1999, claiming depression, Mr Habib quit his job as a smaller business owner and began receiving $470 a fortnight. 

12. His family continued to receive the payments while he was in Pakistan and during his subsequent imprisonment in Guantanamo Bay. 

13. Mr Habib’s lawyer Peter Erman told the Daily Telegraph his client was still “working through issues” with Centrelink following a six-figure payment for an interview with the 60 Minutes program. Mr Habib claimed he suffered physical and mental torture at the hands of US soldiers at Camp X-Ray. He alleged he was routinely beaten unconscious, kicked and tormented with electric shocks. 

14. He told about 100 students at a UWS rally yesterday that the US, not him, was the “real terrorists”. 

15. “All the trouble comes from the US. Look at Oklahoma City, who is blowing up the US? Their own people,” he said. 

16. He also warned Australia not to follow strict US terror laws saying: “They can pick you up, take you away for seven days… tell you they are going to rape your wife and kids.” 

17. Mr Habib has become a regular on the speaking circuit, addressing University of Technology students last month and a rally in March to mark the International Day of Action. 

18. Mr Habib has admitted he was in Pakistan prior to the September 11 New York attacks but has refused to answer claims he trained with al Qaeda in Afghanistan until brought before a court. 

19. Photograph with caption 

20. Caption – On the go… Mamdouh Habib stretches before last weekend’s City to Surf

District Court proceedings

Transcript 2GB Ray Hadley Morning Show (10.19am Thursday, 18 August 2005)

1. Ray Hadley : I had a number of emails over the past month uhhh about Mamdouh Habib and his battle with Centrelink so we went to Centrelink and they, of course, I think privacy reasons, couldn’t tell us any about, anything about their dealings with Mamdouh Habib but then I had a number of emails this week from Monday on alerting me to the fact that while I was at the football on Sunday, old Mamdouh and his son were spotted on Channel 10 running in the City to Surf and all of them were asking the same question, is this man still trying to live off taxpayers ? Well the answer according to today’s Telegraph is yes. He’s still trying to get his hands on his disability pension. Uhhh now if you look at the picture in today’s Telegraph you can see he’s a long way to go convincing us he’s actually unfit to work. He leads a rather active lifestyle , Mamdouh Habib, he ran the City to Surf in 82 minutes and 25 seconds, despite his claims he suffers with, what he calls, clinical depression. Now he’s been locked, according to the Telegraph, in a running battle with Centrelink since he was flown back to Sydney from Cuba last January and incidently [sic, as in original transcript] that trip, as you know, cost tax payers $225,000.00. On his return Mamdouh Habib demanded access to a disability support pension but was told that he’d have to wait to reimburse tax payers for the $11,000 in over payment. You see, what happened was Mamdouh quit his job as a small business owner in 1999 and began receiving a $470.00 a fortnight pension. He claimed then clinical depression . I’m getting depressed talking about it. 

2. His family continued to receive the payment at the time he was in Pakistan looking for a better school for his children and during his subsequent imprisonment in Guantanamo Bay . And don’t forget that there was a very large payment he received from 60 Minutes for the interview that he did which told us and the reporters on 60 Minutes absolutely nothing. He’s also busy on the lecture circuit going to universities to speak on the topic of war and terrorism . Now I don’t think he’s going there in the traditional sense invited by the Vice Chancellor; I would imagine that the students union invites him to go along and he tells them that the USA are a pack of terrorists … the citizens of the USA are a pack of terrorists. Just yesterday, he told 100 students at the University of Western Sydney that the US, not him, was the real terrorist. He said and I’ll quote “All the trouble comes from the US. Look at Oklahoma City; who’s blowing up the US, their own people”. He neglected to mention September 11 of course. He also warned Australia not to follow strict US terror laws saying and I’ll quote Mamdouh Habib “They can pick you up, take you away for seven days, tell you they’re going to rape your family, your wife and your kids .” He’s a half wit. This is the same man who’s admitted he was in Pakistan prior to September 11 New York attacks but has refused to answer claims he trained with Al Qaeda in Afghanistan until he’s brought before a court . Well, there’s a simple thing here. This grub doesn’t deserve a disability pension. He shouldn’t be speaking to university students on the war and terrorism until he’s come clean about his own activities.

Transcript 2UE John Laws Morning Show (10.33am Thursday, 18 August 2005)

1. John Laws : I’ll tell you who is red hot – this Mamdouh Habib. Now this fellow I really would like to meet; he claims he was physically tortured by US soldiers during his time in Camp X-ray but, ahhhh, obviously it hasn’t done him a whole lot of harm, he must have been referring to the rigorous fitness program they put the terror suspects through at Guantanamo because he is looking fit as fiddle to me, this fellow, and he’s come, ahh, come out on Sunday and run (giggles) in the City to Surf. You realise he is trying to get himself a disability pension and he’s just run in the City to Surf, uhhh, that’s about 14km. He’s done that in 82 minutes , not a bad effort for old Mamdouh Habib. He beat 40,000 people and yet he wants a disability pension? This is the same bloke who’s been running a battle with Centrelink for a disability pension. The Daily Telegraph reports today that Centrelink have refused to grant him a disability benefit because he hasn’t paid back $11,000.00 in overpayments that his family received while he was in Pakistan then Guantanamo Bay; he’d been receiving $470.00 a fortnight since 1999 after quitting his job as a small business owner because he claimed he was depressed . Well, maybe the run on Sunday helped but remember this is the bloke who made admissions that he was in Pakistan prior to the 9/11 attacks but he wouldn’t answer any questions about whether or not he’d trained with Al Qaeda . Remember him on 60 Minutes, he was paid a huge quid by Channel Nine to do that interview and that’s obviously not helping him in his cause to get sickness benefits out of Centrelink but he’s just a, he’s (giggles) he’s not just blazing a trail as a runner, he’s also been out filling the minds of university students with crap like this: “All the trouble comes from the US”.This bloke is actually talking in universities in Australia. And we allow it to happen? Brendon Nelson where are you? He’s saying stuff like this “All the trouble comes from the US, look at Oklahoma City, who’s blowing up the US? – their own people .” It wasn’t their own people who flew into the World, ahh, Trade Centre Towers. He also warned that Australia should not adopt strict terror laws from the US; he said they can pick you up, take you away for seven days, tell you they’re gonna to rape your wife and kids , he’s spruiking all this crap to universities to kids who are supposed to be at a place you’re supposed to learn. Now what the hell is he doing there? 

(song) 

2. Hey Mamdouh 

I don’t wanna hear your tale of woe 

Hey Mamdouh 

Why did the Yankies let you go go go 

Something doesn’t seem right 

Very bad your English grammar 

How come you’re not in the slammer 

Hey my man 

What were you doing in Afghanistan? 

Were you up to something shady? 

Were you doing what you shouldn’t do? 

Are you an insider working for Al Qaeda? 

Hey Mamdouh 

Tell us where the truth is at 

Hey Mamdouh 

But there’s bugger all chance of that 

Will we ever know where the money came from? 

Why don’t you shoot through and take that lawyer with you 

Mamdouh, are you friend or foe 

Hey Mamdouh 

3. John Laws: Well we may well ask if he’s friend or foe , he’s certainly fit whatever he might be, running in the, uhhh, City to Surf, beats 40,000 people but he’s knocking on the door of Centrelink saying he needs a disability allowance. I tell you what, who’s responsible for inviting morons like this, this fellow, this Mamdouh Habib, to preach this rubbish I’ve been telling you about in universities. This is occurring in the University of Western Sydney and the Minister of Education should do something about it because it really is an absolute disgrace. 

(song) 

4. Hey Mamdouh 

Tell us where the truth is at 

Hey Mamdouh 

But there’s bugger all chance of that 

Will we ever know where the money came from? 

Why don’t you shoot through and take that lawyer with you 

Mamdouh, are you friend or foe? 

Hey Mamdouh 

(Later, after the 11:00am news) 

5. John Laws : Steve are you there? 

Steve : Yes, I am John. How are you mate? 

John Laws : I’m okay, what can I do for you? 

Steve: This, uhh, Mamdouh Habib…. 

John Laws: Yep. 

Steve : … I don’t mind at all whether he gets this umm this disability payment. 

John Laws : Really? 

Steve : Well, providing that we can organise someone to go out and give him a disability. 

John Laws : (laughs) Yeah. 

Steve: That’s be the first thing. 

John Laws : (laughs) Yeah, he’s uhhh there’s no doubt about it he’s uuhhh hot as a stove, isn’t he? I mean… 

Steve : He did look, he did look quite fit the other night. 

John Laws: He sure did and to run in the City to Surf and uhh come in in the top 20% and then say you’re disabled and you need a disability pension is a joke. He ought to be laughed out of the country not out of the town. 

Transcript 2UE Steve Price (04.07pm Thursday, 18 August 2005)

Steve Price : What sort of mugs are we if Mamdouh Habib gets a disability pension from the Federal Government. Now at the weekend I thought I heard someone tell me that Mamdouh Habib was running in the City to Surf race. It seemed so absurd I forgot about it; then, sure enough, today, he bobs up in the Telegraph in his black and white Adidas tracksuit and sure enough he ran a personal best at the weekend, Mamdouh, of 82 minutes and 25 seconds . Now, from memory that’s about 5 seconds faster than I did it in last year but then again I have a job and I can’t train all day for a foot race. Mamdouh, on the other hand, says he suffers clinical depression ; he’s still suffering from being beaten and getting electrical shock treatment, he said, from US soldiers at Camp X-ray. He’s even suing the Telegraph and the Herald for calling him a suburban terrorist. Now maybe he has a case, I wouldn’t call him a terrorist, I’d call him a bludger. Now he’s a leech on Australia, a social security professional. This same bloke was already in Cent, on Centrelink payments when he disappeared overseas to find Islamic schools to send his children to. Now how could he afford a trip to Pakistan or wherever else he went, maybe from the proceeds of the sale of his cleaning business he once had. And his coffee shop. But if that’s the case, and he had all this income, was able to travel the world, and can now come back and spend his days training for the City to Surf, how did he get the pension in the first place? And can you imagine how many other Mamdouh Habibs there are out there, blokes capable of running 16km in 80 odd minutes but not able to go to work? Give me a break. 

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Amendments

04/08/2009   -   remove "of" - Paragraph(s) Headnote par 4 last line

16/10/2009   -   Gatley (at [3.32]) should be (at [6.32]). - Paragraph(s) [128]

25/04/2020   -   Paragraph 123 – added the word “not” to second sentence “… a plaintiff is entitled to complain not only of the original publication…”.

Decision last updated: 25 April 2020