Thompson v Ausn Capital Television

[1995] HCATrans 291

IN THE HIGH COURT OF AUSTRALIA

Registry   No C1 of 1995

B e t w e e n -

EDWARD CECIL THOMPSON

Applicant

and

AUSTRALIAN CAPITAL TELEVISION PTY LTD

First Respondent

and

PUBLISHING AND BROADCASTING PTY LTD & TCN CHANNEL NINE PTY LIMITED

Second Respondents

Application for special leave to appeal

BRENNAN CJ
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 6 OCTOBER 1995, AT 9.31 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC:   May it please the Court, I appear with my learned friend, MR C.P. McKEOWN, for the applicant.  (instructed by Elrington Boardman Allport Incorporating Murphy & Moon)

MR R.C. REFSHAUGE:   May it please the Court, I appear for the first respondent.  (instructed by Deacons Graham & James)

MR B.R. McCLINTOCK:   May it please the Court, I appear for the second respondent.  (instructed by Gilbert & Tobin)

BRENNAN CJ:   Mr Bennett.

MR BENNETT:   If the Court pleases.  Your Honours, the first question in this application involves the question, which has never been determined before, whether in the context of the electronic media the tort committed by the initial broadcaster and the rebroadcaster is joint or several.  If it is several, of course, the doctrines about releases and so on simply do not apply.  The distinction between a joint tort and a separate tort is defined in an English case called The Koursk (1924) P 140, which your Honours have on the bench. It is a decision of the English Court of Appeal which is always cited in both England and Australia when the distinction is referred to, and the three Lord Justices of Appeal put the tests slightly different.

If I may just very quickly show your Honours what the tests are and then show your Honours how the question arises in this appeal?  Lord Justice Sargant put the test at pages 159 to 160.  Unfortunately the right-hand pages do not have the numbers on them, but the left-handed pages do.  At the bottom of page 159, after referring to The Frankland and The Devonshire, Lord Justice Sargant said:

there must be a concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage.

Now, here, of course, one has the classic separate acts.  One has a transmission by Channel Nine in Sydney through Black Mountain to Channel 7 studio in Canberra.  One then has a mechanical process resulting in a re-transmission on the airwaves.  That is a classic example, we would submit, of a coincidence of separate acts which, by their conjoined effect, caused damage.

The way it was put by Lord Justice Banks at page 151 might have been designed to support a special leave application to this Court, because what his Lordship says three‑quarters of the way down the page, if your Honours see the words “are joint tortfeasors” in the left‑hand margin, adjacent to that:

I think not; and if this view is correct it follows that in order to constitute a joint tort there must be some connection between the act of the one alleged tortfeasor and that of the other.  It would be unwise to attempt to define the necessary amount of connection.  Each case must depend upon its own circumstances.

The question of how that applies to electronic media, we would submit, is an important question.

BRENNAN CJ:   But, does it admit of more than one answer?

MR BENNETT:   We would submit the answer is clearly our way, your Honour, that it is a separate action as to which separate considerations of tortious liability may arise, it is committed in a different place, indeed, in a different jurisdiction.

BRENNAN CJ:   But trace it back from damage that was caused.  Damage is caused on the television set of the receiver?

MR BENNETT:   Yes, your Honour.

BRENNAN CJ:   That as the result of the publication from Channel 7?

MR BENNETT:   Yes, your Honour.

BRENNAN CJ:   And that publication being that which was intended and provided for by the activities of Channel Nine?

MR BENNETT:   Yes, your Honour, which was a separate tort contributing to the same final injuria.  The way Lord Justice Scrutton puts it appears at pages 156 to 157, where he says, two‑thirds of the way down the page, that he is of the opinion that the Clerk and Lindsell definition is nearer the correct view, and he talks about a “common design”:

but mere similarity of design on the part of independent actors, causing independent damage, is not enough; there must be concerted action.....Still more so when there is not even similarity of design, but independent negligences accidentally resulting in one damage.  This is the view of Sir John Salmond:  “Persons are not joint wrongdoers simply because their independent acts have been the cause of the same wrongful damage”.....I myself should put “wrongful” before “acts” instead of before “damage” ‑

because their independent wrongful acts have been the cause of the same damage ‑

I think it is also the view of Collins L.J. in Thompson v London County Council:  The “fallacy that....because the plaintiffs had claimed only one damage, that therefore their cause of action was necessarily one also....What constitutes the cause of action is the injuria, the wrong done by a separate tortfeasor.”  To make the tort, you want a wrongful act causing damage; and to make the tort the same cause of action, both elements must be the same.

So, we say there are two wrongful acts and, again, they are separate torts not joint torts.

Well that is the issue, your Honours.  It is, we would submit, a question of law not a question of fact; the facts are not in dispute and are quite clear, the mechanical facts are all set out and everyone knows what they are.  The matter was argued in the Full Court.  There is a statement in my learned friend Mr Refshauge’s submissions, suggesting that it was not argued in the Full Court.  I will not waste time on this, but I have handed to your Honours an extract from our notice of contention in the Full Court and the argument which showed that the point was raised and argued.

GAUDRON J:   And it was also dealt with by Justice Miles, as though it was an argument.  I think page 89.

MR BENNETT:   And may I just test it this way, your Honours, before I leave this point.  Suppose Channel 7 had rebroadcast it the next day, suppose it had put it on video tape and rebroadcast it the next day, why would that be any different, yet it would be much clearer that the torts were separate.  Each provided the mechanical means by which the offending airwaves were put on the ether into people’s television sets.  The Channel Nine merely gave it to Channel 7, and the fact that it was instantaneous or virtually instantaneous does not mean that it was not a separate tort.  We would submit that is an important question, never been decided, and it justifies a grant of special leave.

The second special leave question, and I only need to succeed on one of these to succeed, so they are alternative in that sense, is the question whether the Law Reform (Miscellaneous Provisions) Act, which provides of course that a judgment against one joint tortfeassor it does not bar an action against another, whether that applies to a release.  Now the state of authority on it is that there is a statement by one of the Justices of Appeal in a case called Bryanston Finance, which is against me.  That was referred to without comment in a dictum by the Chief Justice Sir Harry Gibbs in the Caltex Case.  In the Wah Tat Case in the Privy Council the Privy Council said that, in a different context, the effect of the Law Reform (Miscellaneous Provisions) Act section was totally to repeal the common law rule, not merely partially, although I concede that was not in the context of a release, and there is a decision by Justice Beazley, in a case called State of New South Wales v McCloy Hutcherson, which decides the issue my way, and says that the effect of the Law Reform (Miscellaneous Provisions) Act is that a release is no longer a bar to an action against a joint tortfeasor.  I can take your Honours to that if your Honours wish, but it is probably unnecessary.

The important point is that three judges of the Federal Court have found that issue my way, Justice Beazley in the other case and, in this case, Justice Gallop at first instance and the dissenting judge, Chief Justice Miles in the Full Court.  So, ironically, although I am an applicant for special leave on the issue, I have three Federal Court judges in my favour and two against me.  That at least demonstrates the openness of the point.

The policy considerations are very much our way on it because, if the rule is otherwise than as I have stated it, as I submit it to be, it would operate as a discouragement of settlement.  It would mean that when one sues one joint tortfeasor, in order to preserve one’s rights against the other one must proceed to judgment and one takes a risk or one destroys one’s action if one settles.  That would be very much contrary to public policy.  If one looks at the wording of section 11 ‑ ‑ ‑

BRENNAN CJ:   That depends on the terms of the settlement, does it not?

MR BENNETT:   It does, your Honour, and no doubt it can be put against me that, as long as people are conscious of what the rule is, there is no danger because one drafts the terms appropriately.

BRENNAN CJ:   How does subsection (4) work if your argument is right?

MR BENNETT:   Your Honour, the section is set out on pages 31 to 32.  That works the same way in relation to a judgment as in relation to a release.  The problem with subsection (4) arises in relation to a judgment which the section clearly covers just as much as in relation to a release.  So the problem arises whether I am right or wrong.  The wording of the subsection - it is at the bottom of page 31:

Judgment recovered against a tort‑feasor liable in respect of the damage is not a bar to an action against any other person who would, if sued, have been liable as a joint tort‑feasor -

We would submit what that is doing is abolishing the rule which is the foundation of Duck v Mayeu, which was the case which said that a release of one joint tortfeasor barred an action against the other.  This has abolished the primary rule.  That is the reasoning of Justice Beazley and it is the reasoning of the two judges who supported the proposition for which we contend in this case.

Caltex is silent on the issue except for the simple picking up of the statement in Bryanston Finance, so we would submit that is clearly an important issue.  It is one which is well arguable on the meaning of the section.  It is one which has general application.  At the moment when people draw releases they do not know whether to follow the two Justices who were the majority in this case and whose decision is ratio or the three Justices who have expressed a contrary view.  As long as there is an open argument about it there is a problem for draftsmen of releases.  It is an important section and it is a matter which has not been determined.

Finally, may I say this:  my learned friends have referred in their submissions to the two points on which we succeeded in the Full Court.  They are, of course, entitled to raise those by notices of contention.  Neither involves any real analysis of factual matter.  The facts were fairly clear and straightforward.  One involves the construction of the release, if one gets to that.  That is a very short matter of construction.  The other involves the issue of whether innocent dissemination is a defence to a rebroadcaster in the circumstances of this case.  If they choose to raise that, they are entitled to by notice of contention.  That is probably also an important point, but the fact that it is being raised or may be raised is not, we would submit, any reason why special leave ought not to be granted nor does it any way make this case an inconvenient vehicle.

Your Honours, in conclusion we submit this, that the rebroadcasting by electronic media of material from one telecaster to another - and, of course, international rebroadcasting which is going to become more and more frequent as technology develops - raises important questions for the law of defamation.  It is an area which simply was not there when many of the early cases were decided and, in our respectful submission, it is a matter of importance for this Court to express a view on those questions.

McHUGH J:   Mr Bennett, am I right in thinking that section 11(4) would enable Channel Nine to recover contributions from Channel 7 in respect of the money it has paid to the plaintiff?

MR BENNETT:   It refers to the same damage.  There may be a question as to whether it is the same damage where ‑ ‑ ‑

McHUGH J:   On the assumption that Channel Nine has released the Canberra action, then part of the damages that has been paid over ‑ ‑ ‑

MR BENNETT:   Your Honour, of course, Channel Nine also broadcast in Sydney, which was what we were concerned with when we sued it.

McHUGH J:   Yes, I appreciate that.

MR BENNETT:   It is an accident that the matter has worked the other way.  But, it might well be that, of course, that once the other action is brought, there would have to be an overall accounting.  There would be a real question, I suppose ‑ there may even be Anshun discretionary questions as to whether one could proceed after such an action had been brought.  But, I stress, your Honour, that that would arise even on my learned friend’s construction of the section.

McHUGH J:   That is what I was putting it.  I was putting it rather in your favour, rather than against you, but at the present moment, let it be assumed that the rule in Duck v Mayeu has not been abolished.  What I was putting to you is that, is it open to Channel Nine at this moment to sue Channel 7 in respect of that part of the damage that it has paid to the plaintiff in the release.  Because, it released both actions, did it not?

MR BENNETT:   Yes.  It would depend, your Honour, on the meaning given to the words “same damage” but, as I say, that ‑ ‑ ‑

BRENNAN CJ:   And also on the words “liable in respect of the damage”, would it not?

MR BENNETT:   Yes, it would, your Honour.  But I do stress that problem would arise even if we had recovered judgment against Channel Nine in Sydney.  So, there would be exactly the same problem, whether I am right or wrong on the construction I put on subsection (2).  So, while subsection (4) does raise difficult problems, those problems, we would submit have nothing at all to do with the problems which arise in this case.  They are simply there and one day will have to be dealt with, but they do not arise here.

BRENNAN CJ:   But, if you had recovered judgment against them in Sydney, of course subsection (4) would apply in relation to the damage that was the subject matter of that action.  This is a separate cause of action here, is it not?

MR BENNETT:   Yes, your Honour, that is our point.  One would then have the problem when we sued here ‑ ‑ ‑

BRENNAN CJ:   I do not think we are at the same viewpoint.  It is a separate cause of action, not by reason of the argument that you are putting, but by reason of the publication to a different audience.

MR BENNETT:   Yes, that is so.  I suppose the proposition I am putting would be tested if there had been no publication in New South Wales to any audience by Channel Nine, but merely a transmission to Channel 7 in Canberra, and then an action against Channel Nine in New South Wales.  That would raise the question squarely, but the problem of how one applies to subsection (4) where one subsequently sues Channel 7 in the ACT, arising whether one gets judgment against Channel Nine in Sydney, even if my friends are right about a release, as well as in the release case which occurs here.

BRENNAN CJ:   Except for the effect of the release by liability.  If it is not right to say that Channel Nine is liable in respect of the Channel 7 damage because of the release, it is difficult to see how subsection (4) would apply.

MR BENNETT:   Yes, but Channel Nine would also not be liable in relation to the Channel 7 damage if it had been sued to judgment and satisfied the judgment.

BRENNAN CJ:   That is right.

MR BENNETT:   And in that situation, there would still be a subsection (4) problem if we were to sue Channel 7 in the Australian Capital Territory.

BRENNAN CJ:   There would be an entitlement to contribution.

MR BENNETT:   No.  I am sorry, your Honour.  Perhaps I should set out my hypothesis because it has got a number of steps.  I am assuming Channel Nine broadcasts only on the landline to Canberra, to Channel 7.  I am assuming we sue Channel Nine in Sydney to judgment, and the judgment is satisfied.  Channel Nine then sues Channel 7 under

subsection (4) and obtains some contribution.  There is still the problem of how the accounting is carried out if we subsequently sue Channel 7 in the Australian Capital Territory in reliance on section 11(2), which says that we can still do so.

BRENNAN CJ:   Not if you have recovered a judgment which has been satisfied.

MR BENNETT:   Yes, because there would no longer be any remaining damage, but so long as the ‑ ‑ ‑

BRENNAN CJ:   So long there is no payment of the judgment debt, then you can.

MR BENNETT:   Yes.  What your Honour puts to me is perfectly correct.  The hypothesis should go on to say that Channel Nine is then unable to satisfy the judgment debt.

BRENNAN CJ:   That is right.

MR BENNETT:   Then the problem still arises, and that problem arises whether there is a release or whether there is a judgment, and that is really the point we make.  May it please the Court.

BRENNAN CJ:   Mr Refshauge.

MR REFSHAUGE:   Your Honours, we say in relation to the first question that it does not arise on the facts of the case because it is clear that there was not any kind of independence of the kind that would be necessary to make my learned friend Mr Bennett’s point valid in the sense that it was clear on the findings of the trial judge that the republication of the tort by Channel 7 was pursuant to an arrangement, a licence agreement, that was entered into by the relevant parties and we say that that makes the position relevantly identical, for example, to an author submitting a manuscript to a publisher such as a newspaper, so that it makes it relevantly identical to the situation where a journalist produces an article and submits it to his employer, the newspaper, and the newspaper then publishes it.

Certainly there is a publication to the newspaper, but there is no doubt, in our respectful submission, that the newspaper is then jointly liable with the author and in these circumstances what seems to have misled the applicant is that because there was a separate publication in New South Wales somehow the arrangement whereby there was republication in the Australian Capital Territory through the licence agreement somehow is seen as not entitling the first respondent to say that there was a joint publication in the Australian Capital Territory.

McHUGH J:   But may not one analysis of the facts be that Channel Nine published the matter to whoever received it here in the ACT at Black Mountain and its responsibility for what was published here is as a matter of damage and not as a matter of a cause of action?  In other words, its tort was completed in the ACT when it published it to the transmitter or whoever received it here and that is when its cause of action is complete and when Channel Nine was liable.  Thereafter it is all a matter of damage.

MR REFSHAUGE:   We say no, your Honour, because the publication was not simply a fortuitous republication but a concerted licensed intended republication pursuant to the licence agreement, so that the republication in so far as it was technologically a republication was a publication which was the product of a commercial arrangement to produce the fundamental result and we say that although on a metaphysical analysis one can separate the independent stages of publication in the sense that the publication of the reception at the television receiver was not technologically participated in by Channel Nine, it was part of the one commercial operation.

McHUGH J:   That may be, but the relevant question is:  when was the cause of action against Channel Nine complete?  And what I am putting to you is that in so far as the ACT is concerned the cause of action was complete the moment the signal was received in the ACT.  Now, Channel Nine may well be liable for the subsequent damage, but its tort is a quite different tort to the tort of Channel 7.  Can I illustrate it to you with this illustration:  supposing the Sydney Morning Herald sent an article by fax to the Canberra Times, knowing that its substance was going to be republished by the Canberra Times; surely the cause of action against the Sydney Morning Herald is complete when the fax is received here in Canberra.  It may be liable for the subsequent damage, but the cause of action is complete once the publication is received in the ACT.

MR REFSHAUGE:   Your Honour, with respect, no.  We say there is a cause of action of the Sydney Morning Herald publishing the fax to the Canberra Times.  Of course, that is likely to result in very small damages because of the limited nature of the publication, but we say the further publication by which the Canberra Times then republished was so inextricably intertwined with the original provision of the material that the Canberra Times was jointly liable with the Sydney Morning Herald in that circumstance.  But, of course, your Honour, that position is, factually, a little diverse from the current position where there is a licence agreement ‑ ‑ ‑

McHUGH J:   I appreciate that, but if you test it as a matter of principle you have got to say that there is ‑ in the illustration I gave ‑ Fairfax, the Sydney Morning Herald, commit two torts.

MR REFSHAUGE:   That is so.  In fact, they at least committed three; they published in New South Wales; then they published, arguably, we do not know whether the publication was seen by anyone when the microwave link was received; it may be that it was only theoretically published, in the sense that no one actually perceived it.  It was electronically then redistributed immediately, but arguably ‑ ‑ ‑

McHUGH J:   But the question arises whether they can be said to have published in the ACT as opposed to have set the groundwork and caused damage.  They may well be responsible and they would be responsible.

MR REFSHAUGE:   We say that the licence agreement means that inevitably they were because it was, to the relevant extent, a joint enterprise, in the same way as in Webb v Bloch, the amanuensis who put out the circular was jointly liable, not separately liable, for those for whom he was an agent who was authorising him to put out the circular and publish it on his behalf, in the same way as the author, the journalist, is jointly liable, not simply responsible for the damages, but jointly liable on the cause of action with the publisher, the newspaper, when the ultimate article is published. 

It is the provision of the material which is rebroadcast.  It is not simply an independent transmission of material which independently has been picked up.  Those are the words, of course, in The Koursk, that my learned friend, Mr Bennett, referred to; he picked up the words their from Clerk and Lindsell and Salmond on Torts that it had to be an independent act.  Here there is no such independence.  Metaphysically there is an independence in the sense that the physical acts are the resulting publication is a combination of a number of physical acts.  So that there is the origination of the programme, there is the authorship of the programme in Sydney, there is the transmission to Canberra and then there is the further publication. 

If one does that then theoretically it is the printer who publishes and not the publisher, because it is the printer to whom it has been published by the journalist and then the typesetter and the printer is the one who then puts it on paper and arguably then, the printer simply publishes it to the courier who distributes it to the newsagent.  Again, if one takes the metaphysical distinction in that way, at the end of the day there can only be a publication of the final physical act, but we say that is not the law and has never been the law, certainly in relation to the print media, that all those who are intricately bound up in the publication to the extent where there is a joint enterprise at least ‑ ‑ ‑

McHUGH J:I appreciate the way you put it, but in technical terms there is, in effect, maybe 30,000, 40,000 publications, depending upon the number of viewers, but for convenience sakes they are lumped together, but I must say I find it difficult to think, myself, that Channel Nine can be said to have published this to 30,000 viewers in the ACT.  If you ask the man in the street who published it, he would say Channel 7.  That is not to say that Channel Nine is not responsible for the damage.

MR REFSHAUGE:   With respect, it is not the man in the street that is the test of whether the cause of action is one for which any particular party is liable and certainly Channel Nine may well be, if the publicity is such that the programme is well known and associated with a particular channel, it may well be that the man in the street would in fact say, “No, it was Channel Nine; Channel 7 was merely the vehicle by which Channel Nine got through its programme to me”.

BRENNAN CJ:   That is one way of looking at it.  I just wonder why you resile from saying it was Channel 7 that published.  If Channel 7’s publication is the tort on which you sue, the question so far as Channel Nine is concerned is whether it was involved in that publication by Channel 7.

MR REFSHAUGE:   I do not resile from that.  I was simply saying that the perception by the community of the publisher is not the sufficient test.  It may be of assistance but it is not the sufficient test; one must go further.  Certainly in this circumstance we say that Channel Nine was necessarily involved in the publication because it provided the material for the transmission.  It was the author and the provider of the material that was ultimately published, and in that sense it was involved in the publication - not independently or contingently, but necessarily by virtue of the licence arrangement whereby the publication was intended and a consequence of the transaction.

McHUGH J:   But under the licence agreement was Channel 7 obliged to publish it?  Was it not its voluntary act that published it?  Could it have pulled the switch at any stage or, having received the signal, refused to publish it?

MR REFSHAUGE:   That is so, but we do not say it is required in the same way as the newspaper is not obliged to publish the material that the journalist submits in order to make the journalist jointly liable.  We do not say that if the printer turns off the machine for industrial reasons, that the publisher, because of that possibility, is not liable notwithstanding that the publication can be frustrated, or there can be a choice not to do it.

McHUGH J:   Yes, but in those cases the design of all parties is to publish this to the - they are all engaged in the one single enterprise.  Here Channel Nine discharges its obligation when it sends the signal here and gets paid for it, and whatever is done with it is a matter for Channel 7.  They can run it over five nights or they can put it on in a year’s time or do what they like.

MR REFSHAUGE:   With respect, we say while that is true ‑ ‑ ‑

McHUGH J:   Supposing they had put it away for three years and then showed it:  what would be the situation then?  Would they have published it then?

MR REFSHAUGE:   Yes, we would say they had because they were intimately bound up in the provision of the material that was published in the same way as Channel 7 was ‑ ‑ ‑

McHUGH J:   Is MGM a joint tortfeasor with every theatre in Australia that shows one of their films?

MR REFSHAUGE:   If they have provided that pursuant to a licence agreement, yes, with respect.  We would say that they have been a participant in the publication by virtue of the provision of the material that was published.

McHUGH J:   Certainly a tortfeasor, but ‑ ‑ ‑

MR REFSHAUGE:   And jointly, because the tort is the publication and without the material, the publication cannot arise.  And so the provision of the material is inherently and necessarily associated with the publication because, without the material, there could be no publication and the provider of the publication is inevitably and inextricably involved in the publication.

Your Honours, in relation to the second point, the section 11 point, we say, with respect, that the point was decided correctly by the majority ‑ we say this with no disrespect ‑ of the three judges that my learned friend relies on in the Federal Court.  The analysis is only, with respect, from Justice Beazley and we say that when a complete analysis is undertaken, as it was by their Honours the majority judges in the Federal Court, both for reasons of law and for reasons of policy, the position is as they say it.

My learned friend, Mr Bennett, indicated that there would be policy considerations supporting the abrogation the rule in Duck v Mayeu.  We say that those policy considerations are illusory, that, in fact, the reality of the abrogation of that rule would be that, where there was a release to be entered into or, indeed, a covenant not to sue, it would be required that the releasee be indemnified by the releasor from any claim that the releasor would make against any other joint tortfeasor.  That would have the effect of meaning that the releasor would be effectively barred from taking any proceedings against any other joint tortfeasor because, although theoretically it may be possible, there would be a circular recovery in those circumstances, and that would be the consequence.

So that, with respect, far from encouraging settlement, we say that it would no more encourage settlement than the present situation because the commercial reality would result in the circumstances where there could be no independent recovery and the same result would, in the end, be effected.  It would mean that the release would effectively have to bar any further action, otherwise it would not be possible to enter into a release believing that, by doing so, your liability to the releasee was terminated.  If you did not do that, there would be no value in entering into the release.  And the effective discharge of the joint tortfeasors means that the release is an effective discharge to the defendant at the end of the day.  And, if it were not, then the construction would have to create a mechanism to make that so.

We say that there are two principles.  There is the principle of merger and there is the principle of release and, in conformity with what their Honours said, the principle that section 11 has abrogated is the principle of the cause of action in the judgment, not the question of release.

McHUGH J:   Supposing that Channel Nine had specifically obtained a release in respect of the cause of action against it down here ‑ ‑ ‑

MR REFSHAUGE:   Which it did in section 3.

McHUGH J:   ‑ ‑ ‑ and had paid for it.  Why could it not sue your client under section 11(4) for a contribution?  If it could, it seems to me absurd that the plaintiff cannot sue you but that Channel Nine could sue you.

MR REFSHAUGE:   But it could only sue for contribution ‑ ‑ ‑

McHUGH J:   I appreciate that.

MR REFSHAUGE:   And, with respect, the damages, as in a judgment, would be limited to the determination of the sum to be paid in respect of the tort.  We say there is no absurdity in one joint tortfeasor being entitled to contribution from another joint tortfeasor where the plaintiff is unable to obtain additional damages over and above those damages that it obtains, other than in the special circumstances of exemplary or aggravated damages.

McHUGH J:   I must say that in the last decade of the 20th century it seems to me an absurd rule that somebody can be released in another jurisdiction and that exempts somebody in this jurisdiction who has never contributed to the settlement in any shape or form.

MR REFSHAUGE:   With respect, your Honour, that has certainly been the position ever since Glanville Williams in 1951 but, as the learned author indicated, it requires statutory amendment, and we say that section 11, whether intended or not - and there is no indication at all that it was so intended - has not effected that, because it has not identified that principle, that stream, to which it is directed.  Those are, with respect, our submissions.

BRENNAN CJ:   Thank you, Mr Refshauge.  Mr McClintock.

MR McCLINTOCK:   Your Honours, with one exception, I will not traverse what Mr Refshauge has said; I adopt it.  The exception is I would wish to give a further answer to the question that Justice McHugh put to Mr Refshauge about liability for publication of Channel Nine.  Your Honours, the law is and has been for at least 100 years that when Channel 7 broadcast in the ACT, Channel Nine also was publishing at that moment.

The authorities for that proposition are set out in Gatley, paragraph 236, which is referred to in my written outline - it is paragraph 7 of the outline.  The relevant quotation is, “Liability for publication arises from participation or authorisation”.  If one participates in a publication, no matter to what limited extent one has done it, or if one authorises the publication, one is a publisher, and the question can be asked:  could Channel Nine have been sued in the ACT without the joinder of Channel 7 for the publication in the ACT?  The answer is a clear and unequivocal “yes”.  We could have been sued.

McHUGH J:   That may be because it committed a tort by publishing it to whoever received your signal at Black Mountain and thereafter you are responsible for the consequential damage.

MR McCLINTOCK:   With respect, your Honour, no, that would not be the case.  The reason why is, first, one can test that here because, in fact, there was no evidence in this case that anyone at Channel 7 ever saw this material and it was quite possible that the material went straight from Channel Nine via the electronic means and transmission towers to viewers in the ACT.  If that is the case, we could not be being sued for publication to Channel 7 with consequential damage caused as a result of that.  The fact is that the authorities clearly establish that Channel Nine published when Channel 7 broadcast it.

McHUGH J:   It depends what is meant by participation in the terms of the Gatley formulation.

MR McCLINTOCK:   Your Honour, there cannot be any doubt about what authorisation means and it is clear that we ‑ ‑ ‑

McHUGH J:   Why not?  They provide material.  They do not necessarily authorise it then in that sense to go on and publish it.

MR McCLINTOCK:   With respect, your Honour, if one television station under a licence agreement supplies a programme to another television station, the licence agreement having been negotiated for the purpose of enabling the second television station to rebroadcast, one is clearly in those circumstances authorising it.

McHUGH J:   They can do what they want to do with it, but the question is whether or not they published it.

MR McCLINTOCK:   The answer to that question, your Honour, is unequivocally yes and the authorities for it are set out in the paragraph of Gatley.  The principal one is one called Speight v Gosnay which deals with ones liability when the actual publication is done by a third person other than the defendant itself.  That being so, your Honour, there cannot be, in my respectful submission, any sensible doubt that this was a joint tort.  We supplied the material, Channel 7 broadcast the material to the individual viewers.  Joint torts perhaps would be a more accurate way.

Your Honour, it is not doing violence to the word “publish” to describe Channel Nine as a publisher in those circumstances.  If one had to look for the one event that made publication possible, the sine qua non, it is Channel Nine making the programme in question and despatching it down through the ether to Channel 7 in Canberra.  That was all I wished to say though in amplification in response to your Honour’s question to Mr Refshauge.

Your Honours, as I said, we adopt what he says in relation to the joint tortfeasor point and in relation to the release point and I do not wish to go over that again.  Your Honour, I do this with some diffidence but, in my submission, there are other independent reasons for denying special leave in this case.  They relate to the defence of innocent dissemination here.  Your Honours will be aware that the trial judge found that defence in favour of Channel 7, Mr Refshauge’s client.  Your Honours will also be aware that Mr Justice Miles agreed with Mr Justice Gallop on that point.  Your Honours will also be aware that the majority in the Full Court, Justices Burchett and Ryan, were against us on that proposition.

In my submission, the reasons why their Honours were against that point were demonstrably wrong and, your Honours, in my submission, will not give special leave where the result is going to be inevitably - and in my submission it will be - the dismissal of the appeal, albeit, perhaps, on different grounds to those put by the Full Court below.  Their Honours in the majority below rejected the innocent dissemination defence as a matter of principle simply because it had never been applied to a television station since the origination of the defence.

The defence in question is, of course, one that came into existence late last century, almost a century prior to the invention of television and probably half a century prior to the invention of radio.  The hypothesis upon which the defence of innocent dissemination proceeds is that the publisher in question is entirely innocent of any fault in making the publication.  The three‑fold criteria are that there is no means of knowing that the publisher did not know the material was defamatory; there were no means of knowing that it was defamatory and that the reason why there was no means of knowing was that the publisher was not himself negligent.  Ex hypothesi, that publisher is entirely innocent.  That defence, your Honours, the majority’s basis for rejecting it, with respect to them, cannot withstand scrutiny.  One is proceeding on the basis of, as I said, entire innocence on the part of the subsequent publisher, and it would be an extraordinary result if someone could be found liable when, as I said, ex hypothesi, they are entirely innocent of any fault on their part.

McHUGH J:   But what is this point - if special leave is granted, then you will have to seek special leave in respect of that point.

MR McCLINTOCK:   With respect, your Honour, no.  We can rely upon it by way of notice of contention.

McHUGH J:   Why?

MR McCLINTOCK:   Because we do not seek any variation of the orders below, and that is the criterion upon which one is entitled to put on a notice of contention.  We are entitled to say by way of notice of contention without an application for leave that the court below was right in the result and the orders should stand, although for different reasons.  I can take your Honours to the relevant part of the rules if your Honour wishes me to but, as we read the rules, we are entitled to do so.

Your Honours, there is simply no logic in denying a subordinate television station, so to speak, one in the position of Mr Refshauge’s client, the right to rely upon this defence when every other subordinate distributor of information in our society does.  Newsagents have replied upon the defence for over a century and do so today.  There is no distinction in logic between CTC‑7 when it rebroadcasts material from Channel Nine without knowing what is in it and Gordon and Gotch, for example, the newsagents who distribute a magazine such as The Bulletin.

BRENNAN CJ:   Does that mean that the proprietors of The Australian who transmit their material to Western Australia for publication there in the morning edition, if they have a separate subsidiary company in Western Australia that simply receives the electronic material and prints it out, the Western Australian company avoids any liability for publication of that material in Western Australia?

MR McCLINTOCK:   There may be circumstances in which that in fact is the case, your Honour.  It depends on whose state of mind is the subsidiary in Western Australia.  In a circumstance like that where it was a 100 per cent subsidiary, it is probably highly likely that the subsidiary, so to speak, would have the same state of mind and the same knowledge, and therefore the same inability to rely upon the defence, as would the originator in Sydney or Canberra.  There are some circumstances though where it might be the case, but inevitably in those circumstances the originator would itself be liable for the publication.

It was accepted here, in this case, that whatever else was the case, Channel Nine was liable for the publication made by CTC-7 here.  When one actually looks at the facts of the matter and one thinks about what would happen if there were a claim under section 11(4) or a claim prosecuted to finality ‑ because, of course, it has been dismissed as a result of the dismissal of the claim against Mr Refshauge’s client ‑ if there were a claim under section 11(4) for contribution by Mr Refshauge’s client against mine, what would my answer be to the assertion that, in the circumstances, my client was 100 per cent liable and Mr Refshauge’s client was entitled to 100 per cent indemnity in those circumstances?  I am hard pressed to think of any answer to that proposition, given the relative degrees of fault in the making and the transmission of the programme.

That proposition reveals, with respect, your Honours, the underlying flaw in the majority’s reasoning on this point.  They seem to have thought that Mr Refshauge’s client was, in some way, to be treated as if it were morally responsible for this material when it did absolutely nothing except leave, in effect, a switch open so that electronic impulses could be received from Willoughby in Sydney and rebroadcast here.  Your Honours, in my submission, the passages in the majority’s judgment where, as a matter of principle, they said this defence cannot apply to television stations, are devoid in logic and simply would not be supportable on a full appeal of this matter.  Those passages appear at 55 to 56.

Their Honours also buttressed their rejection of that defence by a series of factual findings which appear at page 56 of the application book and go over to 57.  I might say this:  that none of these propositions were ever actually put, either at first instance or in the Full Court, but their Honours said this, at line 22 on page 56:

The defendant ‑

that is Mr Refshauge’s client ‑

did not prove that exercise of due care which it was required to show.  Indeed, it proved that the contract under which it received the programme for telecasting contained no term whatever requiring due care to be exercised, either generally, or with particular regard to the risk of defaming someone in the viewing area.

Your Honours, that raises, a matter of negligence in the negotiation of a licence agreement between my client and Mr Refshauge’s client some years prior to the particular broadcast.  And it simply cannot be said that that is a basis for saying that there was a lack of due care in not requiring a contractual term.  Who knows, as far as the evidence went, Mr Refshauge’s client may have requested it and we may have refused it, but there was no evidence on the topic.

Over the page their Honours continued:

The reality is that those who produced the programme -

that is, of course, Channel Nine, my client, not Mr Refshauge’s client -

were aware in advance of the nature of what would be said on it;

that may be so -

and if Channel 7 was content to accept the producer as its agent -

there was no evidence that Channel 7 did that and that there was no evidence that my client was the agent of Channel 7.  The evidence was that my client produced a television programme which it gave or sold to Mr Refshauge’s client -

accept the producer as its agent in respect of the consideration of the propriety of televising the material -

There is no evidence of that, your Honour, and again, it cannot stand with the actual circumstance of the matter -

and the producer took no care -

that is my client -

we do not see why Channel 7 should escape the consequences of the producer’s knowledge.

Your Honours, that proposition is in fact an example of literal question begging, where you assume the correctness of the proposition which you are seeking to prove.  It then went on to say that:

At any rate, it took no precautions -

I would wish to make two propositions, and those will conclude what I wish to say to your Honours.  It will inevitably involve looking at the actual facts of the matter to determine whether that part of their Honours’ decision is in fact acceptable or in fact supportable.  Second, the propositions put there are, in my submission, with great respect to their Honours, so demonstrably wrong that they themselves could not be supported.  They seek to make Mr Refshauge’s client liable for acts on the part of my client which, in any event, we have compensated the plaintiff for

and did so more than 10 years ago.  Your Honours, that was all I wished to say in opposition to the grant of special leave.

BRENNAN CJ:   Thank you.  Mr Bennett.

MR BENNETT:   In relation to the joint and several aspects referred to by my learned friend Mr Refshauge, we would respectfully adopt what fell from Justice McHugh in argument that the tort is complete when the broadcast reaches Channel 7, and that what really flows from the subsequent broadcast is damage.  But even if there are two torts, even if one says that Channel Nine commits a tort by the broadcast on the screens in the Australian Capital Territory, that we say is a separate, not a joint, tort.  Can I just give this example?

BRENNAN CJ:   How can that be?  Same broadcast, same screens ‑ ‑ ‑

MR BENNETT:   Different act giving rise to the same damage.  May I give this example.

BRENNAN CJ:   But what are the different acts? One, the flipping of the switch here; one, the flipping of a switch in Sydney.

MR BENNETT:   One, the making and broadcasting of the show in Sydney; one the rebroadcasting, the act of actually broadcasting it to the audience here.

BRENNAN CJ:   Although it is that which transmits on the ether the waves which produce the image, that is the publication.

MR BENNETT:   Yes.

BRENNAN CJ:   But these are separate acts?

MR BENNETT:   Yes, your Honour.

BRENNAN CJ:   Independent?

MR BENNETT:   Yes, your Honour.  May I illustrate it this way.  Suppose I negligently park my car at the top of a hill near a railroad crossing, and leave the handbrake off, and the level crossing keeper negligently leaves the gate open; the car runs down the hill and hits a train.  Now, clearly, our torts, I would submit, are separate torts.  They are not joint torts.  There are several concurrent tortfeasors.  It was the same ultimate act.  The car hitting

the train was what completed both torts, but they are quite separate torts.  They are not a joint tort, and they are separate acts which led ‑ ‑ ‑

BRENNAN CJ:   You had not arranged, on that hypothesis, for the gate to be left open.

MR BENNETT:   No, your Honour, but nor has Channel Nine arranged for Channel 7 to rebroadcast.  It may know that it is likely.  I perhaps ought to have taken into account the possibility that the gatekeeper would leave the gate open, but in each case the acts are separate.

McHUGH J:   It may be a question of authorisation.  Mr Mclintock says, “Well, Channel Nine authorised the material”.  Now, the question is, did they authorise it in the relevant sense.  In one sense they permitted it, but if somebody sells you a car, the manufacturer of the car does not authorise you in the relevant sense to drive it on the road. 

MR BENNETT:   Precisely, your Honour.  Channel Nine is indifferent as to what Channel 7 does with it.  But I stress to your Honours I only need to succeed on one or other of the two principal arguments for the appeal to succeed if I am given leave in relation to both. 

The other matter is this: in relation to the innocent dissemination argument, I will not deal with that in detail except to say this, that it is a very, very high onus to say to this Court, “Two judges of the Federal Court are so clearly wrong that there is no point in granting special leave on another point because it is so clear that they must be reversed on appeal.”  And that would require a very high standard indeed and, in my submission, that standard is not reached.  There is no case deciding the present question, which is whether you can apply the defence of innocent dissemination in this sort of fact situation. 

There are difficult questions of policy as to whether the rule should be extended to this situation and there are difficult issues as to how innocent one regards that when one knows, as their Honours said, that it is a current affairs programme which is obviously capable of containing defamatory material and no effort is made to check it in any way.  Your Honours, in our respectful submission, that is an issue which is well arguable if my friends choose to raise it by notice of contention.  May it please the Court.

BRENNAN CJ:   There will be a grant of special leave in this case.

AT 10.32 AM THE MATTER WAS CONCLUDED