John Zunter v John Fairfax Publications Pty Limited

[2004] NSWSC 696

CITATION:	John Zunter v John Fairfax Publications Pty Limited [2004] NSWSC 696
HEARING DATE(S):	09/06/04
JUDGMENT DATE:	10 August 2004
JUDGMENT OF:	Nicholas J
DECISION:	para 22
CATCHWORDS:	DEFAMATION - Publication - Republication - Cross-claim for contribution - Pleading of - Particulars for inclusion - Supreme Court Rules Pt 16 r 1(1), Pt 67 r 12(1)
LEGISLATION CITED:	Defamation Act 1974 (NSW) ss 7A; 9(1), (2) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) ss 5(1)(c), 5(2) Supreme Court Rules 1970 (NSW) Pt 16 r 1(1), Pt 67 r 12(1)
CASES CITED:	Amaca Pty Ltd v New South Wales (2003) HCA 44 Blackburn v State of New South Wales BC9102416 Gordon v Amalgamated Television Services Pty (1980) 2 NSWLR 410 Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 Sims v Wran (1984) 1 NSWLR 317 Speight v Gosnay (1891) 60 LJQB 231 Thompson v Australian Capital Television Pty Limited (1996) 186 CLR 574 Victorian Broadcasting Network Limited v Whitlam (1980) 42 FLR 256 Webb v Bloch (1928) 41 CLR 331
PARTIES :	John Zunter - Plaintiff John Fairfax Publications Pty Limited - Defendant
FILE NUMBER(S):	SC 20316/02
COUNSEL:	No appearance - Plaintiff G Reynolds SC - Defendant/Cross-Claimant K Andronos - Cross-Defendant
SOLICITORS:	Russell McLelland Brown - Plaintiff Freehills - Defendant/Cross-Claimant The Crown Solicitor - Cross-Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

Nicholas J

10 August 2004

20316/02 John Zunter v John Fairfax Publications Pty Limited

JUDGMENT

1 His Honour: In these proceedings John Zunter (the Plaintiff) claims damages against John Fairfax Publications Pty Limited (the Defendant) arising out of the publication in the edition of the newspaper “The Sydney Morning Herald” of 5-6 January 2002 of the article under the heading “Illegal backburn that went wrong ruined our strategy, firefighters say” (the matter complained of).

2 At the trial under s 7A Defamation Act 1974 (NSW) (the Act) held on 19 June 2003 the jury found the following imputations were conveyed by the matter complained of and were defamatory of the Plaintiff:

“(i) The Plaintiff lost control of his own backburn.
(ii) The Plaintiff wrecked the main strategy of the Shoalhaven fire control officer”.

3 The trial in relation to defences and damages has not yet taken place.

4 By its Cross-Claim filed 12 March 2004 the Defendant claims against the State of New South Wales (the State) an order for indemnity or contribution pursuant to s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) toward any verdict for the Plaintiff against it.

5 In the present proceedings before me the State seeks an order that the Cross-Claim be struck out as defective in that it fails to plead with sufficient clarity or precision the case that the State is required to meet. It also seeks a ruling that issues of fact relevant to its liability to the Defendant under the Cross-Claim be tried by a jury pursuant to s 7A of the Act.

6 So far as is relevant the matter complained of included the headline already referred to, beneath which was a photograph of the Plaintiff with the caption: “Caravan park owner John Zunter … lost control of a backburn”.

Beneath the journalist’s by-line, “Stephanie Peatling”, was the following:

“4. Police are waiting for conditions to clear in the Bendalong area on the South Coast so they can interview a caravan park owner who carried out an illegal backburning operation on Thursday night.
5. The Shoalhaven fire control officer, Brian Parry, said yesterday that the owner of the Rustic Caravan Park, John Zunter, had repeatedly refused to evacuate the premises on Thursday when police were ordering people to leave. “He did his own backburning and indicated that he’d lost control of the backburn”, Mr Parry said.
6. Firefighters were unable to bring the blaze back under control and, as a result, the fire “tore though and wrecked the main strategy”, he said.
7. “It came into the Manyana fire we were trying to control”.
8. Yesterday morning police were trying to work out how to send an investigator to speak to the man, whose property is at the end of a long dirt road with heavy bushland on both sides.
9. Mr Zunter told the Herald he started the backburn out of desperation because the fire was getting closer and the authorities were not going to come and help. Now he was worried about being prosecuted”.

The Cross-Claim

7 So far as is relevant the Cross-Claim is pleaded in the following terms:

“2. The cross-claimant repeats the allegations made in the Amended Statement of Claim.
3. On 4 January 2002, an officer of the cross-defendant (the First Officer) provided information to the cross-claimant to the effect that, among other things:
(a) On the previous day (being 3 January 2002), a caravan park owner had refused to evacuate his premises;
(b) The caravan park owner had also carried out his own back burning on the previous day, and had indicated to the authorities that he had lost control of the back burning he had done;
(c) The First Officer could not allocate fire fighters to fight the back burn, as the back burn was too close to the main fire front that was burning in the area surrounding the caravan park;
(d) The back burn tore through to the main fire front and wrecked the main strategy that was then being employed by fire fighters for fighting the main fire;
(e) The back burn joined up with the fire that was burning in the Manyana area, and which the fire fighters were trying to control;
(f) The caravan park owner was Mr John Zunter of the Rustic Caravan Park.
(the First Officer’s Information)
Particulars
Oral information given at an operational briefing by Mr Brian Parry, the NSW Rural Fire Service Incident Controller for the Shoalhaven Local Government Area, at 8.00 am on 4 January 2002, which briefing was attended by two servants of the cross-claimant, Stephanie Peatling and Paul Harris. The information contained in (f) above was oral information specifically given to Ms Peatling by Mr Parry in response to a question asked by Ms Peatling at the operational briefing.
4. On the same day, another employee of the cross-defendant (the Second Officer) provided information to the cross-claimant, in response to a query by the cross-claimant, to the effect that the owner of the Rustic Caravan Park, John Zunter (the plaintiff), had been told to evacuate yesterday (being 3 January 2002), but had remained and proceeded to light his own backburn.
(the Second Officer’s Information; the First Officer’s Information and Second Officer’s Information together, the Information).
Particulars
Oral information given to Stephanie Peatling and Paul Harris by Mr Allan Barter, captain of the Bendalong Point Fire Brigade and a member of the New South Wales Rural Fire Service, at a roadblock in the Shoalhaven area on 4 January 2002.
5. On 5 January 2002, the cross-claimant republished the Information (or a fair summary of it) as part of the matter complained of in paragraph 2 of the Amended Statement of Claim.
6. The republication of the Information by the cross-claimant was the natural and probable consequence of the provision of the Information by the First Officer and Second Officer to the cross-claimant”.

8 Not surprisingly, Mr Andronos, counsel for the State, initially proceeded on the basis that the Defendant’s case was that the matter complained of included information provided to it by the State’s officers and hence the State was liable as the original publisher for the republication of that information. His understanding was that it was claimed that the State was liable to the Defendant for indemnity or contribution as the original publisher in that the republication was the natural and probable consequence of the provision of the information and thus within the second category of cases stated in Speight v Gosnay (1891) 60 LJQB 231 at p 232. He complained that the pleading failed to sufficiently specify the facts and matters relied upon necessary to establish the elements of such a claim.

9 In written submissions dated 7 June 2004 and at the commencement of his submissions in response on 9 June 2004, Mr Reynolds, SC for the Defendant, asserted that the basis of the Cross-Claim had been misunderstood. He disavowed a case of republisher against publisher with regard to Speight.

10 He explained that the pleading alleged, in effect, that the State is accessorily liable for the Defendant’s publication consistently with the observations of Isaacs, J in Webb v Bloch (1928) 41 CLR 331 at p 364. He contended that it should be understood as alleging that the Defendant and the State were joint tortfeasors in the publication of the matter complained of. For such a case the form and content of paras 2-7 of the Cross-Claim (quoted above), so he argued, specified with sufficient clarity the nature of the case that the State’s officers conduced to the publication by providing oral information to its journalists at an operational briefing and at a roadblock. He submitted that such a case did not require pleading the exact words of any publication or the averment that they were defamatory. It was enough, he said, to plead facts which arguably show the State was accessorily liable for the publication by the Defendant, and this had been done.

11 The statement relied upon from Webb appears in the passage of the judgment of Isaacs, J in which he considered principles by which responsibility for the publication of a libel may be determined. It is in the following terms:

“In Parkes v Prescott Giffard Q.C. quotes from the second edition of Starkie : “All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication : thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected.””.

12 In New South Wales, of course, the published matter which constitutes a libel is that which conveys a defamatory imputation (ss 9(1), (2) of the Act).

13 For the Defendant to succeed on its Cross-Claim it must establish that the State was another tortfeasor who is, or would if sued have been, liable in respect of the same damage occasioned by the publication of the matter complained of. The amount of the contribution recoverable 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) Law Reform (Miscellaneous Provisions) Act 1946 (NSW)).

14 What is required to constitute joint tortfeasors was discussed in Thompson v Australian Capital Television Pty Limited (1996) 186 CLR 574. Gummow, J at p 600 explained:

“In England, Australia and New Zealand, criteria for the identification of joint tortfeasors are to be found in expressions used in The “Koursk” . Scrutton LJ there spoke of “two persons who agree on common action, in the course of, and to further which, one of them commits a tort”, saying that in such a case there is one tort committed by one of them “in concert with another”. Sargant LJ accepted the proposition that persons are joint tortfeasors when their “respective shares in the commission of the tort are done in furtherance of a common design” so that those who “aid or counsel, direct, or join” in commission of the tort are joint tortfeasors”.

15 From His Honour’s analysis of the cases (pp 600-602) it is plain that, in these proceedings, proof that the State is a joint tortfeasor requires evidence of a sufficient nexus between its conduct and that of the Defendant to lead to the conclusion that each participated in the publication of the matter complained of, or to show that it was a party to a concerted design or joint purpose which would make it a joint tortfeasor in relation to that publication by the Defendant (cf Victorian Broadcasting Network Limited v Whitlam (1980) 42 FLR 256 at pp 261-262).

16 It is axiomatic that the State is entitled to the inclusion in the Cross-Claim of sufficient particulars of the facts and matters relied upon to establish the nexus and participation alleged so as to render it liable for the contribution claimed (Sims v Wran (1984) 1 NSWLR 317 at p 321). Furthermore, in order to succeed the Defendant must show that the State would have been liable for the same damage from the publication of the matter complained of if sued by the Plaintiff. It is therefore open to the State to defend the Defendant’s claim by showing that it was not a tortfeasor which if sued would have been liable to the injured Plaintiff (Amaca Pty Ltd v New South Wales (2003) HCA 44 paras 16, 24). Thus it seems to me that the State is entitled to at least such particulars as ordinarily would be required of the Plaintiff had he chosen to proceed against it by way of statement of claim (Sims, p 320D).

17 The State is also entitled to particulars of the facts and matters relied upon to support the amount of contribution claimed including of those directed to establish the extent of the State’s responsibility for the damage occasioned by the publication.

18 Accordingly, in my view, in order to discharge its obligations under Pt 16 r 1(1) to plead the necessary particulars of any claim the Defendant is obliged to include in its Cross-Claim the particulars required by Pt 67 r 12(1) which, in this case, are those specified in sub-paras (a), (b), and (e), and any other particulars relevant to the claim that the State was a joint tortfeasor in the publication of the matter complained of.

19 The Cross-Claim brings a case of oral defamation. The Defendant is therefore obliged to plead the words spoken by each officer being the publications relied upon which are alleged to convey the imputations, including those matters which provide the proper context for those words. (Gordon v Amalgamated Television Services Pry Limited (1980) 2 NSWLR 410 pp 413-415). It is also required to provide the best particulars it can of the identity of the persons to whom it alleges the publication in each case was made. (Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 pp 194-195), Blackburn v State of New South Wales BC 9102416 at pp 5, 6).

20 In my opinion it is self-evident that the contents of paras 3 and 4 of the Cross-Claim fall far short of what is required to comply with the basic rules of pleading which apply to a case such as this. It is insufficient to rely upon what is described in the pleading as “information … to the effect that, among other things”, and as “information … in response to a query … to the effect that” as particulars of the officers’ publications. Such information does not inform the State precisely of what is alleged against it to have been published so as to render it liable for the subsequent publication of the matter complained of. I propose to order that paras 3 and 4 of the Cross-Claim be struck out with leave to replead.

21 Because I propose to give the parties the opportunity to make further submissions in relation to it, I defer my decision on the jury issue and reserve the question of costs.

22 (1) The order is that paras 3 and 4 of the Cross-Claim be struck out with leave to replead.

(2) I direct that the matter be stood over to the Defamation Directions list before me at 9.30am 16 August 2004.

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Last Modified: 08/11/2004