Thompson v Australian Capital Television

[1996] HCATrans 133

IN THE HIGH COURT OF AUSTRALIA

Registry  No C41 of 1995

B e t w e e n -

EDWARD CECIL THOMPSON

Appellant

and

AUSTRALIAN CAPITAL TELEVISION PTY LTD

First Respondent

and

PUBLISHING AND BROADCASTING PTY LIMITED & TCN CHANNEL NINE PTY LIMITED

Second Respondent

BRENNAN CJ
DAWSON J
TOOHEY J
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 18 APRIL 1996, AT 10.18 AM

Copyright in the High Court of Australia

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

MR W.H. NICHOLAS, QC:   If the Court pleases, I appear with my learned friend, MR R.C. REFSHAUGE, 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, I hand up a summary of argument.

BRENNAN CJ:   Yes, Mr Bennett.

MR BENNETT:   If your Honours please.  The common law, for all its virtues, had a number of rigid doctrines.  One of the most rigid, with some of the least sensible results, was the distinction between the joint and to the several.  This was exemplified by the distinction between joint tenants and tenants in common, joint in several obligations and joint in several torts.  The difference, of course, is that a joint thing is regarded by the mystique of the common law as a single thing, whereas a several thing was regarded by that mystique as a number of things.  The two issues in this appeal represent an attempt to infuse the quaint extensions of this doctrine into the world of the electronic media.

The first question arises in this way:  one has a television station in Sydney which produces and conducts and broadcasts a programme - broadcasts it in Sydney.  It also sends it by a Telecom microwave facility to Canberra, where it goes to Black Mountain Tower and then to a studio in Watson, where the evidence is there is a person who has a screen.  At a certain time the screen goes blank and advertisements are inserted and the programme is transmitted by the Canberra television station back to Black Mountain and then out over the airwaves to people’s television sets.  The first question is, if you have a defamatory programme sent by that method, is it a joint tort or are there several torts.  That is the first issue.

The second question is a pure question of law.  The nature of jointness, if I can coin that word for the moment, at common law was that it involved at least five consequences for the law of tort.  I have set those out in the summary at paragraph 2 in the second part of it on page 2.  Your Honours see the five consequences:

2.1  Judgment against one barred another action against another.....

2.2  Judgment against one in an action -

where you sued both in the one action -

barred a further judgment in the same action against another.

2.3  Judgment against all had to be in the same amount.

There were differing cases on whether you took the highest or the lowest, but that does not matter for present purposes.

2.4  Determination of an issue in favour of one operated as an issue estoppel in favour of the others.

2.5  A release of one (but not a covenant not to sue one) barred action against another.

Again, your Honours can see the quaint logic.  A release of one is a release of the tort.  There is only one tort.  A covenant not to sue is of course merely an agreement with a particular person.

What happened then was that one had the Law Reform (Miscellaneous Provisions) Act and section 11(2) abolished the first of those five consequences.  The section also dealt with one of the others in a different way.  Your Honours need not go to it at the moment.  I am simply giving the outline.  What has happened is that the courts have held that the first four of those five consequences are repealed or abolished by that provision, although it only deals with the first.  The courts have done that in each case by saying the underlying rule is what has gone.  The effect of section 11 is to repeal or abolish, if you like, the underlying rule.  What we say is that that applies to the fifth as well.  It applies to the first four; why is the fifth different?  We also say there are policy reasons why that result should follow.

Finally, there is a notice of contention, which, of course, I will not address in‑chief except to tell your Honours in half a minute what it is about.  The issues there are whether the defence available at common law to an innocent retailer of printed material, the sort of newsvendor defence, is available to a television station in the circumstances I have mentioned and, secondly, if it is available, whether in the circumstances of this case, where it chooses to adopt a system under which it does not check what is going to come and has an instantaneous retransmission, so it adopts a system which prevents it becoming aware of what is on the air, whether it can be said to have taken reasonable care.  So those are the two issues on the notice of contention.

May I turn back then to page 1 of my outline and deal with the first of the two points arising in‑chief, which is whether the tort is joint or separate.  Your Honours will recall I mentioned the screen.  I might very briefly take your Honours to the transcript on that because my friends in their submissions or at least one of them has suggested that this is not the case.

DAWSON J:   Just before you go on, is a distributor of a newspaper a separate tortfeasor or a joint tortfeasor?

MR BENNETT:   Yes, he would be, your Honour.

DAWSON J:   A separate tortfeasor?

MR BENNETT:   Yes.

BRENNAN CJ:   What is the tort?

MR BENNETT:   Publishing of defamatory material.

BRENNAN CJ:   That is one tort.

MR BENNETT:   Yes, your Honour.

BRENNAN CJ:   Who are the parties to it?

MR BENNETT:   There is a tort of publishing by the newspaper proprietor.  There may be another tort of publishing by the newsvendor, who may have the innocent dissemination defence.

BRENNAN CJ:   Two torts, one damage?

MR BENNETT:   Yes, your Honour, that can happen all the time.

BRENNAN CJ:   Is it not one tort, two parties?

MR BENNETT:   No, your Honour.  Suppose one has the situation as in The Koursk itself, which is the leading case in this area, where two ships are both negligent, they collide and one of them is thrown into a third ship.  They commit separate torts.  The damage to the third ship is one set of damage, but there are separate torts, not joint torts, committed by the two negligent vessels which collided with each other.

BRENNAN CJ:   That can happen, but in the present context we are speaking about a broadcast by Channel 7 of a signal.  That was the tort which was alleged, not the broadcast by Channel Nine in Sydney.

MR BENNETT:   No, your Honour.  That is a separate tort.

BRENNAN CJ:   It is a separate tort and the question is whether or not Channel Nine in Sydney was a party, a joint party, to the broadcast by Channel 7.

MR BENNETT:   No, your Honour, that is not this, I am sorry, your Honour.

BRENNAN CJ:   Why not?

MR BENNETT:   The issue is, Channel Nine in Sydney committed a number of torts, certainly two and possibly many thousands.  In Gorton v ABC, which I will come to in a moment, it was held that the tort is committed on the television screen at the home of the viewer, so on that basis there are many thousands of torts committed.  But Channel Nine in Sydney did two things:  it sent the programme out on its own airwaves, that was one thing; separately, it sent the programme by Telecom facility to Channel 7 in Canberra.  Channel 7 in Canberra via Black Mountain receives it at its studio.  There is a monitor who is watching it.  It transmits through its own systems to the airwaves, again back through Black Mountain, the same programmes, the same material, and the screen goes blank when there is time for an advertisement and it inserts its own advertisements in that time.  Now, the tort it is committing is a separate tort; it is a several tortfeasor not a joint tortfeasor with Channel Nine.  Channel Nine committed a tort by publishing to Channel 7.  Channel 7 committed a tort by publishing to individuals on their television sets.

BRENNAN CJ:   But nobody sued Channel Nine in respect of the publication to Channel 7.  They sued only in respect of the publication through the Channel 7 network.

MR BENNETT:   No, your Honour.  The deed of release with Channel Nine, which is perhaps what is crucial, relates to everything.

BRENNAN CJ:   That may be so, but let us see if we can identify what was being sued for to start with.  Is it not Channel 7’s broadcast?

MR BENNETT:   That is what we are suing for in this action, yes, your Honour.

BRENNAN CJ:   Yes.  And is not the question, so far as Channel Nine is concerned, on this aspect of the case, whether Channel Nine is liable in respect of the broadcast of the Channel 7 material?

GUMMOW J:   Which was part of concerted action because it was pursuant to the agreement, was it not?

MR BENNETT:   We would say it was not, your Honour.

GUMMOW J:   Is this not all under the value?

MR BENNETT:   We would say it was merely part of the damage.  It is the damage flowing from its transmission to Channel 7.

GUMMOW J:   But Channel 7 was only free to do what it did because it had a contract with Channel Nine.

MR BENNETT:   But it does not make it joint action, your Honour.

GUMMOW J:   Maybe not, but it helps answer the question was this concerted action, which is what was talked about in the classic case like Brooke v Bool.

MR BENNETT:   Your Honour ‑ ‑ ‑

GUMMOW J:   One man holds the matches, the other man strikes the match and blows up the gas pipe.  Here they had a contract, one man was going to hand the match to the other man.

MR BENNETT:   The contract was a licence agreement which was, in effect, a contract for sale.  Channel Nine says to Channel 7, “Here is a broadcast, do with it what you will”.  What Channel 7 then chooses to do - it could store it in some way and then broadcast it the next day, or an hour later.

GUMMOW J:    Do the terms of this arrangement appear?

MR BENNETT:   Yes they do, your Honour.

GUMMOW J:   They are not really discussed in the judgments below, which is one of the things that is a puzzle here.

MR BENNETT:   Yes.  Page 176, which merely licences the other channel to broadcast the transmission.  It is not restricted to a simultaneous rebroadcast.  One can test it this way, your Honour.  Suppose Channel 7 were to broadcast the program today.  That would not be a joint tort with Channel Nine, but it would be permitted by the document on page 176.

GUMMOW J:   But they needed the licence - they would have been infringing the copyright of Channel 9 if they had not had a licence.

MR BENNETT:   Precisely, your Honour.  But that does not make a joint action any more, your Honour, than if there is a covenant which does not run with the land preventing me from permitting certain activity on the land.  I am not in breach of that covenant if I sell the land to a person who is going to carry on that activity.  Channel Nine has nothing to do with the rebroadcast.  It simply ‑ ‑ ‑

GUMMOW J:   It gets a fee, does it not?  I imagine.

MR BENNETT:    The fee seems to be a general one, it does not seem to be limited to a single rebroadcast.  In other words, your Honour, the fee is simply for permission to broadcast as and when it chooses.  Every rebroadcast cannot be a joint tort with Channel Nine.

BRENNAN CJ:   Why not?

MR BENNETT:   Because all Channel Nine has done is assign a proprietary right under which Channel 7 can, if it chooses, do something or not to do it.

TOOHEY J:   Is it any different from the sale of a video by the television station?

MR BENNETT:   No, your Honour.

TOOHEY J:   And the broadcast by the use of a video, one might think, constituted a separated tort in this case.

MR BENNETT:   Yes, precisely, your Honour, that is our submission.  If I have a defamatory newspaper and I show it someone or give it to someone or sell it someone, I am publishing, but it is a separate tort from the tort committed by the newspaper proprietor.  It is true that the damage ‑ ‑ ‑

BRENNAN CJ:   That I do not understand, Mr Bennett.

MR BENNETT:   Your Honour, it is a question of distinguishing the tort from the damage suffered from the tort.

BRENNAN CJ:   Yes.  What are the elements of the tort in question?

MR BENNETT:   The elements are publication and damage.

BRENNAN CJ:   Publication to a reader in that case and damage?

MR BENNETT:   Yes.

BRENNAN CJ:   And you say that the newspaper proprietor who publishes the newspaper that is distributed by distributor to a reader who reads, is not a party to the tort constituted by that distribution.  It is an astonishing proposition.

MR BENNETT:   Your Honour, if he is, it is a several tort.  The primary submission is that he is not at all, but if he is, it is a several not a joint tort.  May I just illustrate that, your Honour?  If the newspaper proprietor publishes directly to - your Honour, I will take it in stages.  When the newspaper publisher publishes the first paper or publishes each copy of the paper to a series of retailers, that is a publication by the newspaper proprietor.  If one sued at that point and before any further distribution, one would recover some damages, although they might be very small.

The foreseeable consequence of that publication is that there will be a republication to each of the hundreds of thousands of readers.  Therefore, damage may be recovered for that republication as damage flowing from the tort, but that is quite separate from the tort committed by the person who actually provides the newspaper to the individual reader.  Now, there are two ways one can regard it.  One can regard it, on the one hand, as being three torts, if one likes:  the tort committed by the publisher in publishing to the vendor; the tort committed by the vendor in publishing to the reader, and a separate tort committed by the publisher when the vendor passes it on to the reader.  That is one view.

The other view is that the passing on to the reader by the vendor is merely damage flowing from the first tort, namely, publication to the vendor.  It does not matter which of the two, for my purposes, one accepts, but what we respectfully submit is not correct is that there is a joint tort by the publisher and the distributor and the retailer or, in this case, a joint tort by Channel Nine and Channel 7.

GUMMOW J:   But in this case, Mr Bennett, it is rather different, because Channel 7 would have been committing a tort vis-a-vis Channel Nine, namely, copyright infringement, unless it had this agreement.

MR BENNETT:   Yes, your Honour.

GUMMOW J:   So it becomes a consensual activity then because there is a licence to do it in return for a fee.

MR BENNETT:   Yes, your Honour.  There is a licence to do it in return for a fee, but that does not make it a joint activity, your Honour.

GUMMOW J:   I wonder why not?  It is the most concerted activity I could imagine, it seems to me, in legal terms.

MR BENNETT:   One does not engage in a concerted activity merely because one permits a person to do what would be prohibited without one’s permission.

GUMMOW J:   That is the question; a question, anyway.

MR BENNETT:   There are many activities that one cannot carry on without a government licence of some type.  That does not make the licensing authority a participant in the activity when the person carries it out, even if it is illegal to carry it on without a licence.  The mere giving of permission to remove a legal bar ‑ ‑ ‑

GUMMOW J:   You used the word “illegal” but that is relevantly irrelevant here.  The pursuit of this joint enterprise then invades the rights of some third party, namely the rights protected by the law of defamation.  That is where this case is about.  The question is, in that tripartite relationship where there are two tortious questions involved, is there a joint tort vis‑a‑vis the third party by reason of the necessary connection between the first and second party to engage in that activity on the part of the second party?

MR BENNETT:   Can I just answer your Honour’s first question with another analogy?

GUMMOW J:   I have no firm view about it, but that seems to me the area of debate and people selling newspapers on street corners I do not think have anything to do with it.

TOOHEY J:   Selling them on street corners may not, but what is the position if a national newspaper publishes separately in one or more States and publishes through another company with which it has an arrangement so that it publishes, let us say in New South Wales, itself, but maybe in other States publishes though another company that has been either brought into existence for the purpose or was already in existence, so that there is a publication by that company in that particular State.  On your argument, that would be a separate tort.

MR BENNETT:   Either a separate tort or a no tort.  Either the holding company is committing no tort ‑ ‑ ‑

TOOHEY J:   Well, subject to the innocent dissimilation.

MR BENNETT:   Yes, your Honour.  May I just come back to the question your Honour Justice Gummow asked me ‑ ‑ ‑

GUMMOW J:   What I am really asking, Mr Bennett, is there any more profound discussion of the problems involved than appears from the old chestnut of The Koursk.

MR BENNETT:   Not that we are aware of, your Honour.  But can I just put this example to your Honour in answer to what you put to me about consent.  Suppose one has a mortgage which has a term that I may not carry on any activity on the land without the mortgagee’s ‑ ‑ ‑

GUMMOW J:   Is there any discussion of this by Professor Glanville Williams in his book, for example?

MR BENNETT:   I think there is, your Honour.  Can I come back to that in a moment?

GUMMOW J:   Yes, all right.

MR BENNETT:   Suppose one has a term in a mortgage that one cannot carry on any activity on the land without the mortgagee’s consent.  If the mortgagee gives consent, that does not make the mortgagee a person who is carrying on the activity.  It does not make him a party to the activity; it does not even make him a person who might be guilty of the offence of permitting it.  The mortgagee is simply doing something which takes away what would otherwise be a proprietary or contractual ability to prevent it occurring.

The mere fact that there is a licence to do something which would otherwise be ‑ ‑ ‑

GUMMOW J:   A licence for value.

MR BENNETT:   A licence for value.  The mortgagee gives value.  The mortgagee might even sell the consent.

GUMMOW J:   It is not their licence.

MR BENNETT:   Yes.  But the mere fact that there is a licence to do something which would otherwise be a breach of copyright cannot make the licensor, without more, a participant in what is done by the licensee.

BRENNAN CJ:   That may be so, Mr Bennett, but if the covenant is not to shoot upon the land and the mortgagee then provides the mortgagor with a gun and the gun is shot in circumstances which expose the mortgagee to a liability in negligence - say it is to a child aged seven that is given the gun - do you mean to say that the party who gives him the gun is not liable simply because there is a licence to shoot on the land?

MR BENNETT:   What he would be liable there for, your Honour, in that case is not for the shooting of the gun but for the negligent act of entrusting the gun to someone else.

BRENNAN CJ:   Quite.  In other words, where the primary party takes the initiative in the doing of the act which causes the damage.  It is not simply the licence that provides, as it were, the ammunition - in this case the ammunition of the defamatory matter.

MR BENNETT:   Your Honour, if one goes back a moment to a gun seller, a gun seller who provides a gun and bullets is not a participant in the act of shooting which injures the plaintiff.  He has not committed that tort.  He may have committed a tort of negligence in some way or a breach of a statute in supplying the gun and supplying the ammunition.

BRENNAN CJ:   That depends on what view one takes of Leurs’ Case as to the liability in respect of a party who commits the actual act or makes the actual omission.  It may be that there is negligence on the one part followed by a separate act, but the question here is where the material which causes the damage is prepared by Channel Nine for the purpose, inter alia, of transmission to Channel 7 in order that Channel 7 may retransmit, is Channel Nine then a party to the retransmission by Channel 7?

MR BENNETT:   May I just qualify the phrase your Honour puts to me in one respect.  Your Honour used the phrase “for the purpose” I think your Honour said “of Channel 7 retransmitting”.  With respect, that is not quite right.  It transmits it to Channel 7 for the purpose of obtaining a fee.  Channel 7 is then free to do what it likes:  to show it 20 times, not to show it at all, to show it in five years or to retransmit immediately, as it did.  It is not quite correct to say, in my respectful submission, that Channel Nine transmits it for the purpose of retransmission.  That is, rather, something which Channel 7 can choose to do or not choose to do and it is not part of Channel Nine’s purpose.  Channel Nine has no interest in whether it does it or not.

DAWSON J:   It was contemplated by Channel Nine.

MR BENNETT:   Whenever a person sells something or licenses someone or leases something one assumes that it likely that the person who is the beneficiary of the transaction will do something with it otherwise the person would not acquire it, but it is not Channel Nine’s purpose in any way.  Channel Nine’s only purpose is to obtain a fee and it provides something.  Channel 7 may then, if it chooses, use it.

DAWSON J:   It strikes you that the criminal law is much more sophisticated in this area than the law of torts.  The doctrine of common purpose would cope with all this adequately, but there is no doctrine of common purpose or concert in the law of tort, is there?

MR BENNETT:   No, your Honour, but even if there was, this is not common purpose.

GUMMOW J:   But assume, Mr Bennett, that the programme that was transmitted it turns out is a programme in which the copyright really resides in NBC and they are upset about it and they want to sue for infringement.  Why would they not say 7 and Nine were joint defendants, that is to say that Nine had authorised the infringement by 7 through the transmission?

MR BENNETT:   Because the authorisation in that example would be meaningless.  It would merely be a false indication by one to the other that there was power to give permission.

GUMMOW J:   I think there is a whole body of law on these sort of questions, Mr Bennett, which are very close to the tort questions we are looking at here.

MR BENNETT:   We would submit there were two quite separate infringements there.  There is an act of infringement by Channel Nine in sending it to Channel 7 and perhaps in falsely claiming to have the right to give permission.  There is an act of infringement by Channel 7 in broadcasting, but they are separate acts.

GUMMOW J:   The same sort of question arose in this Court with a photocopying problem, the university that provides the machine with the coins for the students to come and copy and the question is, is there relevantly a joint tort there?  It all gets quite sophisticated I think.

MR BENNETT:   That is a little different there because there the student is actually operating the university’s machine and there may well be more difficult questions there.

DAWSON J:   But does not one look to see what the actual tort is?  The tort is the defamation, the defaming of the person and it is the material that defames the person.  The material may be disseminated on more than one occasion but it is the same tort committed on different occasions by different people.

MR BENNETT:   Your Honour, we would submit not; we would submit that the tort committed on the television sets is the tort of Channel 7 alone and our fall-back position is that if there are two torts committed they are separate acts which caused the same damage, because the contributions to that are of a completely different nature and really ‑ ‑ ‑

DAWSON J:    So that if I write a letter which is defamatory and give it to A and then give the letter to B, I have committed two torts?

MR BENNETT:   Your Honour, my primary position is that - your Honour gives the letter to A and then to B?

DAWSON J:   Yes.

MR BENNETT:   That is two torts, yes, your Honour.

DAWSON J:   Not the one tort by doing various things.

MR BENNETT:   Let me show your Honour what was said in Gorton v ABC (1973) 22 FLR 181 and at page 183 at the top of the page, Mr Justice Fox said, starting on the fifth line:

There being no authority to the contrary binding on me, I am prepared to act on the basis submitted.  I understand the law to be that a television programme is published in each place in which it is seen, notwithstanding that the programme is made in one studio, and, also, that the tort is committed where publication takes place.

So, the tort committed by Channel 7 takes place on the television screen.  The tort committed by Channel Nine, relevantly, leaving aside the tort committed on each television set when it sent it to its own viewers, was committed at Watson in the Australian Capital Territory, at the studio of Channel 7, when it received and the monitor saw the programme.  That is the other tort it committed.  Now, part of the damage flowing from that tort is the anticipated rebroadcast which, of course, caused the damage for which we sue; the damages for the monitor seeing it would be nominal.  But once the tort is defined in that way, in my respectful submission the two cannot be joint tortfeasors.

The phrase used in The Koursk, which is the leading case in the area ‑ I have set it out in paragraph 4 of the submissions, is:

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 there is no concurrence.  Here there is an act done by the one channel of selling by way of licence its programme and transmitting it to the other and the act done by the other of transmitting that to individual television sets.

BRENNAN CJ:   But that leaves out of account the critical questions, it seems to me, whether or not, that being so, Channel Nine authorised the transmission by Channel 7.  I mean, the question, if one is an author and provides copy to the editor of the paper, is the author liable only for the publication to the editor?  Surely the author is liable if the author has authorised the publication in the paper.  Is Channel Nine similarly liable for authorising the publication by Channel 7?

MR BENNETT:   In my respectful submission, they are not similar.  The word “authorise” has two different meanings.  There is the meaning of “authorise” in the sense of authorise someone to do something as my agent.  I can say to a person, “Please do X on my behalf.”  That person then is authorised by me to do it and I am liable for that person’s acts.  That is one type of authority.  There is a totally different meaning of the word “authorise” where, because something is my property or because I am a government licensing authority, my permission is required before something can be done and I give that permission.

Now, the English word “authorise” is used for that, but that is a very different form of “authorise” and it does not make me responsible for the acts of the person I authorise.  So one has to distinguish between the two.  The letter to the editor is an intermediate one but probably on the other side of the line because when a person writes a letter to the editor, the purpose of writing it is to have it published.  It is published because the person who is writing it wants it to be published, and in that situation, the paper is acting as the agent of the author, but where I am the owner of copyright in a literary work and the newspaper says to me, “May I have your permission to put an extract of that in my newspaper?”, that is the other meaning of the word “authority”, and the person who authorises that is not committing the tort when the paper publishes it, although there may be a tort of publication to the newspaper which has, as its consequence, that result as part of the damage.  But the answer to the question your Honour the Chief Justice asks me is that it involves using the word “authority” in those two senses, and they are different, in my respectful submission.

GUMMOW J:   Well, there is discussion by Sir Harry Gibbs of “authorise” in Moorehouse 133 CLR, at pages 12 and 13.

MR BENNETT:   Yes, I will have that obtained, your Honour, and I will look at it in the course of the morning.  We submit that in this case the situation is precisely analogous to what occurred in The Koursk.  It required both torts to be committed before the damage was suffered.  The damage suffered by the third ship was suffered because both tortfeasor ships were negligently navigated and they hit each and then one bounced off and hit the plaintiff’s ship, but there was only one damage and it was a damage flowing from the combination of the two and that is, we would submit, the classic case, if there is a separate tort, of concurrent tort.

This is a case dealing with the word “permission”, and it discusses the detail in relation to the use of a photocopying machine, but one does have to bear in mind the two meanings of the word “authorise” in looking at it and that was a case where there were a number of other factors present.  The case which may well be thought to be analogous is one which I have not put on my list of authorities but which demonstrates the principle, and that is the case which ‑ ‑ ‑

GUMMOW J:   It was not really the facts in Moorehouse that one is interested it, Mr Bennett.  It was in the analysis part of Sir Harry Gibbs and  quite, with respect, thoughtful consideration of various authorities.

MR BENNETT:   Your Honour, the problem is it is a discussion in the context where one is looking at the word “authorise” in a statute and giving it a meaning rather than ‑ ‑ ‑

GUMMOW J: Yes, I know, in section 36 of the Copyright Act, which is the joint tortfeasor section of copyright law.

MR BENNETT:   Yes, but it does not - perhaps I will deal with it more fully in reply, your Honour.

GUMMOW J:   Yes.

MR BENNETT:   The other example - and this is a case which we have not provided to your Honours - is Sefton v Tophams Ltd (1967) 1 AC 50, and there is a passage at page 65 in the speech of Lord Hodson. That was a case where there was a covenant not running with the land not to permit a racecourse to be used for any purpose other than a racecourse, and it was sold by the owner to a person who the owner knew intended to develop it for blocks of flats, and the court said in the course of discussing various issues that that was not a breach of the covenant because there was not a permitting. Certainly, what entitled the new owner to build the flats was the ownership, not any act of the vendor event though, or course, without the Vendor’s Act, the flats could not have been built.

Here, we would submit, the same principle applies where there is a form of licensing or permission.  That does not make the act done a joint tort, any more than the treasurer is a joint tortfeasor with a bank merely because the bank cannot carry on business without the treasurer’s permission.  The second point which arises, your Honours, against me on that ‑ ‑ ‑

TOOHEY J:   Just before you leave the first point, Mr Bennett.  Is there any situation, within the general framework of the factual situation here, which could give rise to a joint liability on your argument?

MR BENNETT:   If the facts were different, your Honour.  If Channel Nine had said to Channel 7, “We wish this program to be broadcast in the Canberra area, and we wish you to do that and let us adopt measures to synchronise our signals together so that we can send it to you and you can transmit it on to the Canberra area”, one might say there was a joint act.

TOOHEY J:   But is that because of authorisation or because of something more than authorisation?

MR BENNETT:   Because of something more than merely licensing them to use the copyright.

DAWSON J:   But that sounds a bit like agency, does it not??

MR BENNETT:   That would be an agency issue.  That is authorisation in the other sense of the word.  But my submission is that merely to give a permission to do what otherwise cannot be done, does not, of itself, make one a joint tortfeasor.

GUMMOW J:   Well you have got more than that here, because there is the actual provision of the material.

MR BENNETT:   Yes, your Honour, which may or may not be broadcast on, and may be broadcast on in five years time.

GAUDRON J:   But in circumstances in which it was foreseeable that it would be broadcast on, given the nature of the program.

MR BENNETT:   Yes, I accept that, your Honour.

GAUDRON J:   And in circumstances in which Channel Nine would have been liable for the damage following that rebroadcast.

MR BENNETT:   Yes, your Honour, and that is why if Channel Nine were to be sued for its publication to Channel 7, part of the damage would be the damage flowing from the retransmission by Channel 7 - because of that foreseeability.

GAUDRON J:   I wonder if it is fair to talk even of publication to Channel 7.

MR BENNETT:   Well can I test it this way, your Honour.  Suppose that Channel 7 chose to wait some time before rebroadcasting ‑ ‑ ‑

GAUDRON J:   I could see that as quite a different proposition, partly because that may not be foreseeable damage, partly because they may well have inspected it before rebroadcasting, but in circumstances where it is anticipated that it will be broadcast on, and where as far as one knows all that occurs is that a switch is kept open.

MR BENNETT:   It is a little more than a switch, but, your Honour, there is no evidence of what Channel Nine intends.  There is no evidence that it knows exactly what happens.  One can draw an inference.

GAUDRON J:   One can certainly infer that it is reasonably foreseeable that this would be broadcast on.

MR BENNETT:   Within a short time, yes, which may be a microsecond or may be half an hour or an hour for programming reasons and may be the next day and may be the distant future, but may I just test it for a moment, your Honour.

BRENNAN CJ:   Would it be the next day having regard to the title of the programme?

MR BENNETT:   It is less likely, your Honour, certainly.

GUMMOW J:   There might be a section 52, may there not?

MR BENNETT:   Yes, but certainly it might be half an hour or an hour later for programming reasons, but if it were some days later and the rebroadcast was stopped by injunction and someone were to sue Channel Nine for defamation, it would have committed a defamation by the publication to the monitor in Canberra.  It would be a defamation with light damages obviously or nominal damages, but the tort would have occurred.  If one then says what happens if it was published three days later and then the action is brought, part of the damage flowing from that publication would include the republication to the Canberra area because that would have been anticipated and foreseeable and so on, but it does not make it a joint tort within the meaning of The Koursk, which is the doctrine.  Your Honours, that is the first submission. 

The second submission is that the old rule in relation to release has been overridden or abolished by the Law Reform (Miscellaneous Provisions) Act and the section appears at page 266 of the appeal book.

BRENNAN CJ:   Mr Bennett, is it common ground that there was a release?

MR BENNETT:   Yes, your Honour.  The release is set out in the ‑ ‑ ‑

BRENNAN CJ:   I mean on its true construction it is a release and not a covenant not to sue.

MR BENNETT:   Yes, your Honour.  Yes, it is 151 to 153 and your Honours will see from the bottom of 152 that there was not a judgment.  It was done by notice of discontinuance, so it is not a case where there was a judgment recovered against Channel Nine.  The section then appears on page 266 and subsection (2) provides:

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 in respect of the same damage.

If one looks at the five consequences of the common law rule as set out on page 2, it is apparent that by its terms that is only directed to the first.  The first is that judgment against one barred an action against the other.  Your Honours, there are a number of cases we have referred to here which are not on the list.  We have prepared bundles for your Honours.  Your Honours probably will not need to go to them in the course of argument, but I hand up the bundles so that your Honours may have them.  Most of these are very old, very short cases.

The first rule is that judgment against one barred action against another even if the judgment was unsatisfied.  That, of course, is clearly the major rule and it arises because of the nature of the rule.  A joint tort is one tort.  There can only be one judgment for one tort.  The second rule was an extension of that:  judgment against one in an action brought against all bars a further judgment in the same action against another.  So one has the situation where if one sues all of them, for some procedural reason one gets an early judgment against one of them and then in the same action one brings on the claim against the other and the judgment against the one has barred the action against the other.

The only point I wish to make at the moment is that subsection (2), if your Honours have page 266 still open, does not apply in terms to my 2.2 if one were to treat it literally because it is not a bar to an action against any other - well, it is already the same action.  The third is the judgments all had to be in the same amount and there is Sir John Heydon’s Case and Broome v Cassell.  Broome v Cassell your Honours may recall was decided without reference to the equivalent of the Law Reform (Miscellaneous Provisions) Act, so it was decided purely under the common law and no one seems to have argued that section for some reason.  That is commented on in Caltex.

TOOHEY J:   I am not sure why you describe that as a consequence.

MR BENNETT:   Your Honour, because the reason for rule 2.3 was that there is only one tort.  A joint tort is only one tort and, therefore, even though you can get judgment against everybody, it is one tort and one amount and there were differing rules at different times as to whether it was the highest or the lowest - your Honours need not be concerned with that - and that rule, we submit, emerged from the same origin.  The fourth one is the converse, the determination of an issue in favour of a defendant who is a joint tortfeasor operated as an issue estoppel in favour of the others, although it is interesting that in Phillips v Ward they do say that you can have a situation where there is a defence peculiar to one, like infancy or lunacy, where that rule might not operate, but nothing turns on that for present purposes.

GUMMOW J:   Is that an aspect of the principles of privity?  I think that is the way Justice Taylor put it in Ramsay v Pigrim, is it not?

MR BENNETT:   Yes, I am going to come to Ramsay v Pigrim, your Honour.  But it derives from the same rule that there is ‑ ‑ ‑

GUMMOW J:   That is what I wonder:  what the connection of the whole of this body of doctrine is with privity, the whole of the joint tortfeasor idea.

MR BENNETT:   Your Honour, it is really the idea that there is only one tort.  The concept is a unitary one, whereas with several torts there are a number of torts which have been committed.  All these consequences then flow from that.  The final one is that a release of one, but not a covenant not to sue, barred action against another.  That also goes back to the 17th century.  As I have submitted section 11(2) does not relate to any of the others.  Section 11(3) deals with the third one, the one about the same amount, and has a consequence in relation to that slightly different to the common law consequence, but otherwise section 11(2) does not deal with the others.

In Wah Tat Bank the Privy Council dealt with 2.2. So we are dealing with a case where it is a single action against all, a judgment against one and then against others. Your Honours will see at page 515G there is a statement of the common law rule. Their Lordships say, after setting out the corresponding section:

According to the common law rule, anyone who suffered damage by reason of a tort jointly committed by a number of persons was deemed to have but one cause of action which merged in the first judgment which he might recover in respect of it.

Then it goes on to talk about some of the consequences.  They then say, interestingly enough, at the bottom of the page:

This was a highly technical and unsatisfactory rule but it prevailed even though the judgment recovered remained unsatisfied and the liability of joint tortfeasors is and always has been joint and several.  It mattered not that.....the plaintiff did not know the whereabouts nor even of the existence of the other tortfeasors.  The rule often worked injustice on plaintiffs, and allowed defendants without a spark of merit to escape liability.

So that is the comment on the rule.

It is then dealt with at page 518 where they discuss the words of the section and the consequences and then say, midway between E and F:

Their Lordships accordingly conclude that paragraph (a) abolishes the old common law rule in its entirety; it does not abolish that part of it which according to one view may have been defensible and preserve the other part which is indefensible from any point of view save that it may have followed logically from the part which has been abolished.  Their Lordships consider that this construction of paragraph (a) accords equally with the manifest intention of the legislature and with fairness and common sense.

I have shown your Honours what they meant by the common law rule.

BRENNAN CJ:   I am sorry, what is the common law rule?

MR BENNETT:   At page 515G, your Honour:

anyone who suffered damage by reason of a tort jointly committed.....was deemed to have but one cause of action -

and the second part is:

which merged in the first judgment which he might recover -

but the common law rule is that where there is a joint tort you are deemed to have but one cause of action.  One of the consequences of course is that it merges.

BRENNAN CJ:   Another consequence of which is that it may be released.

MR BENNETT:   Yes, your Honour.

DAWSON J:   That does not seem to follow.  You could release one tortfeasor without the cause of action disappearing.  In other words, that explanation of the rule does not leave logically to the rule that ‑ ‑ ‑

MR BENNETT:   In that case, may I show your Honour what was said in Cocke v Jennor which is the first of the cases in our bundle?  This is the earliest case we have found which lays down the release rule, and your Honours see it was a joint assault by a number of people and the plea was a release of the joint tortfeasor.  At the bottom of the first page:

Whereupon the plaintiff demurred -

so he demurred to the plea of release of one -

and it was adjudged for the defendant; for though a trespass be joint, and several to this purpose, that he may sue either one or all, yet when two join in a trespass, they so make one trespasser, as either of them is as well answerable for his fellows fact as for himself.  And therefore -

it is the word “therefore” which I pray in aid in answer to your Honour Justice Dawson’s question ‑ ‑ ‑

DAWSON J:   It does not follow “therefore”.

MR BENNETT:  

And therefore a release to one dischargeth the whole trespass - - -

DAWSON J:   It is not a “therefore”, it is just an assertion.

MR BENNETT:   Your Honour, this is the fons et origo.  This is where it starts.  It may be that the ‑ ‑ ‑

DAWSON J:  All right, you should not have to deal with that.

MR BENNETT:   No, your Honour.  It may be the reasoning was wrong.  It may be that the “therefore” was not correct as a matter of logic.

DAWSON J:   Except if you abolish the true rule, as is set out from Wah Tat Bank, it does not necessarily follow on that reasoning that you abolish the other one, whatever its function.  If the other rule is a “therefore”, then perhaps, yes.

MR BENNETT:   That is the argument, your Honour.

therefore a release to one dischargeth the whole trespass; and also a release is -

and so on.

BRENNAN CJ:   But your attack then is on the notion of a joint tort.

MR BENNETT:   Yes, your Honour.

MR BENNETT:   You say that the statute has abolished the doctrine of joint torts, so that each party to a tort is severally liable.

MR BENNETT:   It has abolished the fiction that when there is a joint tort there is only one tort with all the consequences that flow from that.

BRENNAN CJ:   Whether it is a fiction or not might be open to debate but, at all events, what you are saying is there is no such doctrine as joint tort any longer?

MR BENNETT:   Effectively, yes, your Honour.

BRENNAN CJ:   Why would it be, then, that subsection (2) would pick up one of the implications of the doctrine of joint torts and not pick up other implications of the doctrine of joint torts, nor abolish the doctrine of joint torts expressly?

MR BENNETT:   We say it would not, your Honour; we say it abolishes them all.

BRENNAN CJ:   I know you say that but in its text it deals with the effect of a judgment recovered, and only that.

MR BENNETT:   Yes.

BRENNAN CJ:   Why would it do that if its purpose was to abolish joint torts?

MR BENNETT:   Your Honour, the primary answer to that is, because the Privy Council so decided in Wah Tat Bank and this Court so decided in Caltex.  The reasons why those courts reached those conclusions are in the passage I just read from Wah Tat Bank and from a number of passages in Caltex, that one would not assume, it would be indefensible that one would intend to abolish some consequences and not others, and it therefore accords with the manifest intention of the legislature and with fairness and common sense.

DAWSON J:   But it is more fundamental than that, is it not?  That if the whole basis of the doctrine was that the cause of action merged in the judgment - and that must be the basis, even if the passage you referred to us in the earlier case - because the cause of action merges in a judgment therefore a release of one is a release of all - if that is gone, and it is gone under subsection (2), then there is no basis for any doctrine.

MR BENNETT:   Precisely, your Honour.  That is, with respect, what we put.

DAWSON J:   Because the cause of action does not merge in the judgment.

MR BENNETT:   Yes, your Honour.  Your Honour puts it better than I put it, with respect, and we adopt that.  It follows that a release of one is not, by that fact alone, a release of all.

DAWSON J:   Even though that never seemed to depend upon the doctrine that the cause of action merges in the judgment, but seems to be on some separate basis.  The cases seem to establish by the use of the word “therefore” the contrary.

MR BENNETT:   Yes, well, we rely on that, your Honour.  Caltex puts it even more strongly than Wah Tat Bank, as I will show your Honours now.  Caltex (1985) 155 CLR 448, and the principle passage is in the judgment of Sir Harry Gibbs at page 459, where his Honour, at the bottom of page 459, in the last paragraph, said this:

Once it is accepted that more than one judgment may be given against joint tortfeasors for damages caused by a joint tort, whether damages are given in the same or in different proceedings, there can remain no foundation -

so, just stopping there, what his Honour has done is to pick up Wah Tat and say, the “same” proceedings, that is what the section says, “different” proceedings, that is the extension Wah Tat gives the section -

there can remain no foundation for the rule, but only one sum can be awarded by the different judgments.

So that is coming to 2.3.

The reason for the rule was that there was only one cause of action against the joint tortfeasors, but that is no longer the position -

If I could just stop there, in other words what his Honour says is gone is the idea that, with a joint tort, there is only one cause of action.  It goes back to the fundamental rule.

the statute has abolished, “in its entirety” -

and that is the phrase from Wah Tat -

the old common law principle that a person who suffers damage by a joint tort has only one cause of action which merges in the first judgment recovered in respect of it.

So he adds the reference to “merger” there, but then goes on to explain it, and to explain it in a way which supports my submission, because his Honour goes on to say:

Surely the statutory provision was not intended to abolish only the doctrine of merger, for it was not primarily directed to the question of merger, and there is no reason for selecting one aspect of the principle rather than another as that which it was intended to affect; the whole principle should be held to have gone.

I will just stop there.  If one divides this slightly differently to the way I have divided it, if one says, “The doctrine of merger is my 2.1 to 2.4 and release is in a separate category”, it is not something we would support, but if one puts it that way for the moment and says, “Well, Wah Tat, when it talked about the old common law doctrine was talking about merger, because it picked up the whole sentence, so what has gone is 1 to 4, but 5 remains”, that is exactly what it is that Sir Harry Gibbs says is not the case, because his Honour says, “Surely the statutory provision was not intended to abolish only the doctrine of merger.”  So if one treats 1 to 4 as merger and the other one is 5, he says, “We haven’t just abolished 1 to 4; we’ve abolished the primary rule that joint tortfeasors only commit one tort.”

GUMMOW J:   What is the consequence of that reasoning at the top of page 460 of Caltex for contribution between these?  We have got judgments in different amounts now.  Does one say there is no coordinate liability for the same loss?  A different loss, so there I
s no contribution, just putting aside subsection (4) for the moment from the section.

MR BENNETT:   It is difficult to put aside subsection (4) because, in a sense, one is construing the statute in which subsection (4) appears ‑ ‑ ‑

GUMMOW J:   Well, subsection (4) is on the basis that there was no contribution under the old law anyway, which is something of itself something of a mystery.

MR BENNETT:   That would be right, yes, your Honour.  The rule in Nixan v Merryweather, anyhow, would prevent that occurring.  So it is common law there would not have been a contribution.  Under the statute, there is a specific provision for contribution in certain circumstances which is, of course, not limited to joint tortfeasors.

GUMMOW J:   But does that work where the judgments are in different amounts?  Does not subsection (4) rather assume for the same liability?

MR BENNETT:   If you had judgments against each and then an application for contribution, it is hard to see why there would be a case for contribution when - I suppose, no.  If one paid the whole of the judgment and the other did not ‑ ‑ ‑

GUMMOW J:   Yes, paid the whole of the smaller.

MR BENNETT:   Yes.  The Court would have to exercise its discretion and work out what the fair apportionment was in the contribution application.  The problems which arise, of course, occur where the contribution case is brought before the second action, but a lot of these things are not worked by the section.

GUMMOW J:   Yes, so it seems.

BRENNAN CJ:   I think the view that I expressed in that case was that it was compensatory damages which were the subject of compensation, exemplary damages were not.

MR BENNETT:   Yes, that is so, your Honour.  I am going to come in a moment to your Honour’s judgment.  But may I just show your Honours that Mr Justice Mason, as he then was ‑ ‑ ‑

TOOHEY J:   Just before you leave the Chief Justice, Mr Bennett, the view that you have expressed as to the operation of what the Chief Justice said is not the view held below by the majority, is it?  They saw this expression in its entirety as having been referrable, as indeed it was, to the earlier judgment in the English case, but thought that in neither context was the Court speaking about anything other than the consequences of bringing action and that it said nothing about a release.

MR BENNETT:   Certainly it does not deal expressly with release, but the point we make is that the Chief Justice makes it crystal clear that what he regards the section as abolishing is the common law rule that joint tortfeasors commit only one tort.  That is what his Honour means by “in its entirety” and he goes out of his way, although he takes the phrase from Wah Tat to say it is not just merger.  The Wah Tat judgment uses the phrase “in its entirety” in relation to the common law rule, and I have shown your Honours.  It says the common law rule is the rule that there is only one cause of action which merges.

His Honour goes on on page 460 to say the statutory provision was not intended to abolish only merger, but everything, so he must mean, and the bottom of page 459 makes it clear that he means, the rule that is only one cause of action.  We would respectfully submit that it is not correct to construe his judgment in any other way.

Mr Justice Mason as he then was, at page 464, agreed with the Chief Justice in the first sentence of his judgment.  Mr Justice Murphy agreed with him in the first sentence of his judgment.  Mr Justice Wilson on page 465 agreed in the first sentence of his judgment.  Your Honour the Chief Justice dealt with the matter at page 465 first, at the very bottom of the page.  Your Honour there said that your Honour agreed:

with the Chief Justice that the consequence of enacting s.5(1) is that in New South Wales separate judgments, possibly in differing amounts, may be recovered in the same action against co-defendants who are joint tortfeasors.  The effect of s.5(1) upon the joint and several liability of joint tortfeasors is far reaching, for the unity of the cause of action against all joint tortfeasors is severed by s.5(1)(a) -

the unity of the cause of action is severed by it -

and the resulting implications are not merely procedural.

Your Honour then goes on to discuss the machinery and at the bottom of that page, your Honour repeats that proposition.  If your Honours go to point 7 of the page, your Honours see the word “tortfeasor” in the left‑hand margin.  Just adjacent to that, your Honour the Chief Justice says:

A plaintiff may now recover a separate judgment against each joint tortfeasors and he may seek satisfaction of each judgment recovered from the judgment debtor, subject to s.5(1)(b).....  As s.5(1)(a) confers on a plaintiff the right to recover judgments in successive actions against the respective tortfeasors, the unity of the common law cause of action against all joint tortfeasors is severed.  Axiomatically, a judgment awarding damages against any tortfeasor must be founded on an antecedent cause of action against him, and so a plaintiff now has as many causes of action as there are joint tortfeasors.  He may sue and recover judgment on any or all of those ‑

And, we would submit, he may release one of them.  And that is a necessary consequence.

There is a further statement which your Honour referred me to a moment ago at page 471 point 3 where your Honour deals with the different considerations in relation to exemplary damages, but that does not arise in this case. 

The fourth consequence of the rule was referred to by Justice Taylor in Ramsay v Pigrim 118 CLR 271. His Honour was the only Justice to deal with this question. His Honour starts at the bottom of page 287 by dealing with merger and then at the top of page 288, after the quotation, his Honour with reference to merger says:

That this was so at common law is clear enough.  Further a release of one of two joint tortfeasors would also provide an answer to an action by the plaintiff against the other and, finally, it would seem that judgment for the defendant in favour of one joint tortfeasor may well have provided an answer to a subsequent action -

So he refers to a number of the five consequences.

But by s 5.....it is provided.....

The effect of this legislative enactment is, of course, to permit successive actions to be brought against individual joint tortfeasors and the result of this must be to destroy the basis upon which it might, perhaps, have been asserted that at common law joint tortfeasors were in the same situation as privies for relevant purposes.  That being so.....the plea cannot be sustained -

and so on.  That was a case involving issue estoppel where there was a judgment for the defendant in favour of one of the joint tortfeasors on which another sought to rely, but his Honour regarded that part of the rule, the fourth aspect, as being overridden because it destroyed the basis.  So it is the same sort of reasoning as appears in Caltex and Wah Tat.

There is one case where the submission which I am putting was accepted.  That is the decision of Justice Beazley in State of New South Wales v McCloy Hutcherson (1993) 116 ALR 363. Her Honour refers to the section at page 371. Her Honour then says at line 33 on that page:

The legal commentators, on the whole, appear to support the survival of the rule, notwithstanding the enactment of s 5(1).  The authors of Trindad and Cane:  Law of Torts in Australia, 1985, and Winfield and Jolowicz on Tort, 13th ed, consider the rule remains, the latter referring to Duck v Mayeu to explain its rationale.  However, Professor Fleming in The Law of Torts expresses the view that the rule, having its origins in an assumed corollary of the “one cause of action” theory, may have been implicitly abrogated by s 5, because the section, “by authorising successive actions”, may have completely severed the unity of the common law action -

She then refers to XL.  She refers to the Chief Justice and your Honour and says at page 373, her conclusion at line 5 ‑ ‑ ‑

GUMMOW J:   It is really line 11.  It is said to be illogical.

MR BENNETT:   Yes.

GUMMOW J:   Why?

MR BENNETT:   Your Honour, it is illogical because the five matters referred to are really consequences of the one thing.

GUMMOW J:   I can see it may have been illogical to do one thing but not the other, but the question is whether the other was done.  One cannot say it was done because it was illogical not to have done it.  So one comes back to the text of the section.

MR BENNETT:   Yes, I think “illogical” is probably being used to mean unreasonable in that context.  So, as I think I said on the special leave application, I have the irony that although I am an appellant there were three Federal Court justices in my favour and two against me.  I should tell your Honours about the contrary suggestion which is made in the dissenting judgment of Lord Diplock in Bryanston Finance v de Vries (1975) 1 QB 703 and it is a very short passage at page 732 where his Lordship says at just above B:

The description embraces all joint tortfeasors other than those whom the victim of the joint tort has covenanted not to sue:  or has released from liability prior to judgment by entering into an agreement of release with any one of them.  The technical common law doctrine of “release” is unaffected by the Act.  Such an agreement still has the effect in law of releasing all other joint tortfeasors as well, though courts nowadays are reluctant to construe -

it in that way.  Then:

So section 6(1)(a) when closely analysed does have the result of abolishing in its entirety the technical common law doctrine of merger of the cause of action against -

and so on.  That passage is referred to without comment by the Chief Justice in Caltex 155 CLR immediately prior to the passage I read to your Honours.  The Chief Justice refers to that passage at page 459 and his Honour does it, we would submit, without really expressing a view.

TOOHEY J:   That perhaps lends some support to the notion that the Chief Justice in Caltex was focussing on the consequences within the framework of bringing an action rather anything that was done outside legal proceedings.

MR BENNETT:   Well, your Honour, that does not seem to be what appears from the words, “one cause of action”, “the statute has abolished”, at the bottom of the page, nor the references to, “not just merger”, on the next page, because the whole of the rules in relation to judgment are really part of the rules relating to merger.

TOOHEY J:   What, including the requirement that the sum awarded be the same in each case?  Is that an aspect of “merger”?

MR BENNETT:   That may not be, your Honour.

TOOHEY J:    It does not seem to be, at least in the sense it seems to have been treated differently in the cases to which you have taken us.

MR BENNETT:   No.  That may be different.  But what his Honour says is ‑it is just above the last paragraph, five lines above:

In Bryanston Finance Ltd. v. de Vries, Lord Diplock said that an agreement to release one joint tortfeasor still releases the others; it may be thought that this implies that the rule that the victim of a tort committed by joint tortfeasors has only one cause of action still applies, but the question that now falls for decision was not discussed.

He goes on to says that it does not still apply.  So, to that extent, his Honour seems to be disagreeing with what Lord Diplock said but, in any event, it was in a dissenting judgment and it is obiter.  Now, the only other authority against me is the decision of Justice Burchett in Palmers v Blowers.  I will not take your Honours to that, but his Honour comes to the same conclusion as that which he came to in the majority judgment in this case.

GUMMOW J:   Mr Bennett, was there any law reform report before the British Act of 1935?

MR BENNETT:   Yes, your Honour.  That is, I think, on my learned friend’s list, your Honour.  It does not, we would submit, help a great deal.  I was rather planning to wait to see how they made it relevant to what we are submitting, but it is on your Honour’s list and no doubt my friends will take it to your Honour.  I will deal with it in reply.

Finally, I come to the question of policy - this is paragraph 11 on page 4 of my submissions.  We would submit that there is no policy reason why the common law rule should survive solely in relation to releases.  Releases can always be drafted so as to meet the exigencies of the parties’ wishes.  Now, of course, I appreciate that is a two-edged submission because, whichever party wins this case, however your Honours rule, future drafters of releases can create the opposite result by drafting the release appropriately.  But if one is dealing with unadvised and unsophisticated parties, policy considerations would suggest, we would submit, the release

by one should not release the others, particularly when a judgment against one does not bar an action against others.

Why should a litigant be worse off by settling than that pursuing a tortfeasor to judgment.  In one sense, the rule for which we contend may be said to create a trap for the unwary tortfeasor.  The rule for which my learned friends contend creates a trap for the unwary plaintiff.  Now, bearing in mind the relative sophistication of the average plaintiff and the average tortfeasor, we would submit the former is the lesser of the two evils.  So to the extent that policy considerations come into this area, we would submit that they would favour an approach that the whole of the doctrine has gone.  We know four of the five consequences have gone and, in our respectful submission, the fifth has gone, too.  Those are my submissions, if your Honours please.

BRENNAN CJ:   Thank you, Mr Bennett.  Mr Nicholas.

MR NICHOLAS:   Can we hand up our submissions, your Honours.  Your Honours, in our submissions we deal firstly with innocent dissemination, and then from page 6 we deal with the point raised by the appellant, and it would be convenient, perhaps, to go to that first at page 6.  Your Honours, perhaps it is not necessary to read to you paragraph 1.

BRENNAN CJ:   Perhaps you might give us a moment until we read it for ourselves, Mr Nicholas.

MR NICHOLAS:   Certainly, your Honour.

BRENNAN CJ:   Yes, Mr Nicholas.

MR NICHOLAS:   If the Court pleases.  Your Honours, dealing with the matter from page 6 first, can I remind your Honours that as appears from page 265 of the appeal book, the appeal was argued on the footing that the programme, as televised in the Australian Capital Territory, plainly involved a publication by Channel Nine.  The court then went on to describe the facts as my friend has outlined them to you, namely, the Channel transmitted the programme to Black Mountain to be received by Channel 7, and then the delivery, ultimately, of the signals through to the sets of the viewers.

In relation to publication, we do submit that the true situation is that Channel Nine is responsible at law for the publication and there can be little room for argument about that.  To the reference given in University of New South Wales v Moorhouse133 CLR 1, the pages from the Chief Justice’s judgment at pages 12 to 13 were mentioned. May I also add to them the discussion by Mr Justice Jacobs in the same case at pages 20 to 23 on the question of authorisation.

TOOHEY J:   Mr Nicholas, could I ask you what you seek to derive from that sentence on page 265 at line 10?  It is self‑evident, is it not?

MR NICHOLAS:   Yes, it is, but the effect of it is that Channel Nine jointly published the matter complained of.

TOOHEY J:   That is a matter of argument.  This is simply a statement of what was televised in the Australian Capital Territory involved a publication by Channel Nine, namely Channel Nine’s transmission of the programme to Black Mountain.

MR NICHOLAS:   All right, your Honour.  I see what your Honour is  putting back to me.

TOOHEY J:   It just seems to me to take the argument nowhere, on either side.

MR NICHOLAS:   Your Honour, perhaps we read it more optimistically than we should.  Can I take the Court to the discussion of publication in Webb v Bloch 41 CLR 331, and the particular passage in the judgment of Mr Justice Isaacs is at page 362.

GUMMOW J:   Now some of those authorities are criminal libel, are they not?

MR NICHOLAS:   Yes some of them are, your Honour, with the ‑ ‑ ‑

GUMMOW J:   Which may in fact bring in some of the consideration Justice Dawson was referring to of common purpose.

MR NICHOLAS:   Your Honour, with respect, it will not matter, we would say and I will take your Honours to other discussions. Your Honour asked about Glanville ‑ ‑ ‑

GUMMOW J:   But so much of defamation comes out of criminal law, historically.

MR NICHOLAS:   Well, ultimately, it did indeed and that would seem to be an explanation as to why, loosely put, all those responsible for, ie who participated in, the production of the matter.

GUMMOW J:   Well the language of Clerk and Lindsell that is mentioned in The Koursk at page 159 could almost be the language of criminal law:

Persons are said to be joint tortfeasors when their respective shares in the commission of the tort are done in furtherance of a common design.

MR NICHOLAS:   Yes.  And, your Honour, in Webb v Bloch, his Honour, in the passage that I am about to take you to, makes very plain the situation we would say.  At the foot of page 362, your Honours see the reference to “Publication”:

One strongly contested question in this case is as to the responsibility of the defendants for the malice of Norman.  Much of the difficulty was occasioned, in my opinion, by a misunderstanding as to what is meant by “publication.”  It was urged that, whatever he did or whatever was the state of his mind, the defendants took into their own hands the question of publishing the circular, and as they did that, Norman’s malice - if there were malice on his part - in framing and distributing the circular pursuant to express direction, did not affect the defendants.  Norman’s part in the matter is seen by reference to the evidence.  He was employed in general terms to compose “a form of circular he would advise being sent to each grower and contributor,” and at the same time to send “a full list of names and addresses of growers and contributors.”  He was, therefore, employed to compose the circular “for the purpose of publication”.  His skill and experience, his knowledge acquired while acting as solicitor for Webb as well as others, his legal knowledge, in short, his expert ability and mentality, were enlisted and utilized by defendants for the very purpose.  His was no subordinate part.  He subsequently consciously distributed it, and I regard this distribution not as an isolated act, but as the consummation of the task he had suggested and had undertaken, he being selected as the best one to see it effectively carried home to the 2,000 or 3,000 growers it was intended to affect. When that was completed, his “publication” of the libel did not consist merely in the distribution of the paper vehicle which embodied it.  To publish a libel is to convey by some means to the mind of another the defamatory sense embodied in the vehicle.  On the facts of this case, Norman in law “published” the libel on Webb, even if not he but another had undertaken the actual distribution of the circular:  he would still have been one of the principals in relation to Webb.

The meaning of “publication” is well described in Folkard in these words:  “The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since; if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him.”  In Starkie it is said:  “The declaration generally avers, that the defendant published and caused to be published;  but the latter words seem to be perfectly unnecessary either in a civil or criminal proceeding;  in civil proceedings, the principal is to all purposes identified with the agent employed by him to do any specific act.  In Parkes v Prescott, Giffard QC 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.  In R v Paine it is held:  “If one repeat and another write a libel, and a third approve what is wrote, they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty:  so that murdering a man’s reputation by a scandalous libel may be compared to murdering his person; for if several are assisting and encouraging a man in the act, though the stroke was given by one, yet all are guilty of homicide.”  A little later, in R v Drake that law was reaffirmed.

And then, your Honours, Lord Denman:

“If a man request another generally to write a libel, he must be answerable for any libel written in pursuance of his request:  he contributes to a misdemeanour and is therefore responsible as a principal.”  In that case, the defendant was indicted for “publishing and causing to be published” the libel in question.  The judgments show that all the defendant did was to authorize the publication of the libel, in law that he published it.

Perhaps, the further examples, your Honour, Parkes v Prescott at the foot of the page:

“If a man gives a copy of his speech to another to publish, he is answerable as a publisher.”

TOOHEY J:   Perhaps no one would really quarrel with that, but does that answer the question as to who is a joint tortfeasor?  This seems to focus upon the question as to whether or not a particular individual is liable for a publication.  Justice Isaacs deals with a number of illustrations, but does that necessarily answer the question of whether those persons are joint tortfeasors or not?

MR NICHOLAS:   Your Honour, it does if it is accepted that it brings in all those who participated in the publication, which of course is the end product of the activities of possibly a whole range of people:  those who write it, those who compose it, those who select it, those who present it and, ultimately, those who deliver it.

TOOHEY J:   They, you say, are all joint tortfeasors?

MR NICHOLAS:   Yes.  Your Honour, the discussion in the text make that, if I may say so, very plain indeed.  Perhaps it would be sufficient if I simply give your Honours some references because the texts identify in a given case the links in the chain starting from the author - in a newspaper case, starting from the journalist, going through to the subeditor, editor, through the line down to the printer and then ultimately through to the newsagents and the distributors.  All are recognised as being jointly responsible for the ultimate publication.  Whether or not of course some of those publishers, by reason of their particular role in the activity, have available to them defences such as that of innocent dissemination is of course a different question, but the concept of publication in this field of law is very wide‑reaching indeed.

GAUDRON J:   Is there a time, Mr Nicholas, when the chain comes to an end?  I am thinking specifically in terms of republication.  I am thinking of somebody republishing a week later saying, “Did you see this?”.

MR NICHOLAS:   It is a matter of fact and degree really, your Honour.  The question of responsibility for republication will be visited upon the original publisher in circumstances where what he originally published was matter which he would expect in the ordinary course of things to be picked up and republished.  So, your Honour, it is not apt, if I may say so, to look at it from the point of view of a lapse of time.

In the situation with which we are dealing where you have a television programme, the Today programme, coming straight down the line, the signals being picked up and without interference being redistributed, then we would say there could be no argument about it.  But we would also say that there could be little argument as to the liability of Channel Nine if for various reasons Channel 7 chose not to play the programme until later in the day or until a week later or three weeks later, because it is quite plain that the matter has been produced back in the studios of Channel Nine for public viewing.

In this particular case, as we know from looking at the licence agreement, there appears to be absolutely no restriction on the number of times or the occasions when it would be rebroadcast.  It is delivered to them and one might think it is a matter of common sense.  The expectation is that Channel 7 will use it as often as it chooses to.  So we would say, your Honour, no, one would not look necessarily to timings in dealing with that question.

In any event, your Honour, we say that there is no question of republication in this case; there can be no wrong done until such time as a viewer sees the words and images which conveys the defamatory message to him or her.  In other words, I suppose theoretically there was a publication by Channel Nine to the people in the Channel 7 studio, immediately it came down the line to them, but of course simultaneously it was going out to the viewers in the area as well.  What I am trying to say, I suppose, is that merely by transmitting unintelligible electronic signals to a tower, Black Mountain say, is not the end of Channel Nine’s activity; no harm is done by that because they are plainly meaningless until the message is conveyed to the third person viewers.  So one is dealing only with the wrong, which is the publication to the viewers of intelligible words and images, and we say, for the reasons that we have put, with respect, that Channel Nine is jointly responsible for that.

Your Honours, there is a discussion in the text, and if it be sufficient for me to simply read them onto the record, Gatley 8th Edition, paragraph 236, Brown Law of Defamation in Canada volume 1, 345 and following, 2nd Edition.  As to republication, Gatley 8th Edition, paragraphs 266 to 269.  Your Honour Mr Justice Gummow asked whether Glanville Williams dealt with this, he does.  In his work, Joint Torts and Contributory Negligence, the 1951 Edition, which I understand is the relevant one, at page 10 he deals particularly with the situation of libel, your Honour.  At page 10, if I can read from it, he says this:

So if A and B jointly write a book which in fact defames C, they are joint tortfeasors whether they realised that the book was defamatory or not.  So also it seems that the journalist, compositor, printer, publisher and distributor of a libellous periodical are joint tortfeasors, at any rate in respect of the ultimate publication, since they are engaged in the joint enterprise of distributing the periodical to the public.  Where the same libel is published in different periodicals they are not joint tortfeasors, but if the libel is contained in a newspaper there is a statutory provision for mitigating the damages recoverable in a second action if the plaintiff has already recovered in the first.

I do not think I need to take you any further than that.

So, your Honours, we say that really brings us to the real point in the appeal, namely, whether or not it can be said that section 11 has achieved the abolition of the common law rule in Duck v Mayeu.  Your Honours, that exercise, we submit with respect, involves, obviously enough, a construction of the whole of the provisions of section 11 and if I can start where we wish to end up, namely, with XL Petroleum, and I will take your Honour back to the passages that my friend has read to you to submit ultimately that they simply do not support the proposition for which he contends and that will involve perhaps taking your Honours through Bryanston v de Vries and Wah Tat to make that good.

Shortly stated, your Honours, we say that section 11 addresses in terms the question of abolishing the rule as to the recovery of judgment being a bar to an action and then it goes on importantly in this context to put a limit, as it were, on the amount which may be recovered in respect of the same wrong from others and, of course, providing for contribution.  We will come to it, your Honours, but really what it is getting to is this, that the language of the section is plainly inapt for the abolition of the rule relating to releases and the consequences which might flow from that because it makes no provision for matters such as contribution, limitation and so on.

We will say that the situation is conveniently illustrated with the Tasmanian legislation because in the relevant provision of the Tasmanian legislation the provision as to releases is dealt with in terms and, your Honours, perhaps it may be convenient to go straight to that now and ask your Honours ‑ ‑ ‑

TOOHEY J:   Just before you do, Mr Nicholas, do you accept that the legislation has the first four consequences referred to in Mr Bennett’s submission?  It is just that if you do or if you accept in respect of all of them or maybe even only some of them, it tends to limit perhaps the need to which the court had resort to authority.

MR NICHOLAS:   Can I come at it this way, your Honour.  I think what we would simply say is that my friend in asserting that it extends to the fifth rule is just simply putting it too high and that in order to determine its effect upon his fifth rule it really is not necessary to go to whether or not the first four are as he would ‑ ‑ ‑

TOOHEY J:   That is really what prompted my question because it may make exploration of a number of cases unnecessary.

MR NICHOLAS:   We say, with respect, it does.  We say that this question can be determined by, if I may say with respect, a proper understanding of what the XL Case was concerned with and the boundaries of it and, secondly, as a matter of construction of the provision of the Act itself and, again, if we may say so, we do not see that the question needs to be unnecessarily complicated.

Thus, your Honour, a convenient start point might be to compare the provisions in section 11 of the Act with the provisions of section 3 of the Tortfeasors & Contributory Negligence Act 1954 Tasmania.      As far as we are aware, your Honour, Tasmanians are the only people who benefit from this particular piece of legislation in so far as it deals with anything other than the matters covered in section 11.

Going to the Tasmanian legislation, section 3(1) through, I think, to (c), embraces the matters dealt with in sections 11(1) to 11(4) of the ACT legislation.  Section 3(3) is the provision which deals with a release.  If your Honours would turn to that, it provides that:

A release of, or accord with, one joint tortfeasor granted or made by a person by whom damage is suffered -

(a)  does not discharge another joint tortfeasor unless the release so provides; and

(b)  relieves the joint tortfeasor to whom it is granted or with whom it is made from liability to make contribution to another joint tortfeasor,

and has effect to reduce the claim of the person by whom damage is suffered -

(c)  in the amount of the consideration paid for the release or accord;

(d)  in any amount or proportion by which the release or accord provides that the total claim of that person shall be reduced; or

(e)  to the extent that the joint tortfeasor to or with whom the release or accord is granted or made would have been liable to make contribution to another joint tortfeasor if that person’s total claim had been paid by the other joint tortfeasor,

whichever is the greatest.

Your Honours, we would say that if one took the view contended for by my friend that section 11 does away with the release rule, it brings about a situation, for example, where the releasee will be exposed to liability under section 11(4) - that is to say, will be exposed to the prospect of a claim for contribution without, for example, the protection which the Tasmanian subsection (3)(b) has seen fit to provide.  We would say it really is not any answer to say that the draftsman of the agreement would write in some provision for indemnity in such circumstances.  We would say to that, with respect, that the releasee will nevertheless be left with exposure to liability and he will be left, plainly enough, with the risk as to whether he will be able eventually to recover under whatever indemnity his particular agreement has given him.

Thus, we would say, your Honours, it is not really - in light of the provisions which are there in section 11, it is going to require more than simply holding that the effect of this Court’s decision in XL has, as it were, led to the abolition of the concept of a joint tort.

DAWSON J:   But section 3 of the Tasmanian Act spells out a great deal, does it not?  If you look at section 3(1)(d), it deals with settlement without any question of release, and then the settling tortfeasor proceeding against another tortfeasor.

MR NICHOLAS:   Yes, it does, your Honour.  What I am trying to say, with respect, is that ‑ ‑ ‑

DAWSON J:   It spells out things which the other legislation does not do.

MR NICHOLAS:   That is what I am saying, your Honour, but what I am ‑ ‑ ‑

DAWSON J:   And it does not mean it is necessary to spell out those things.

MR NICHOLAS:   No, I certainly accept that, but what I am putting to your Honour, if only from the position of policy, and bearing in mind that section 11 came about in order to secure a fair situation in the circumstances that we know about, it throws up real questions of policy, we would say, of the kind that I have endeavoured to raise.  So, it really simply is not as simple.

GUMMOW J:   Well, the English Law Reform Committee had as their task dealing with contribution in Merryweather v Nixan, and they went on at the end of the report, from what one can see, more or less to say, “Maybe we had better take these other steps as well”, namely, as to the effect of joint torts.

MR NICHOLAS:   Yes.

GUMMOW J:   It is only in paragraph 11 of their report that they decide they are going to, in a way, go outside their charter and deal not only with contribution but with release.  Does not one have to construe the legislation that followed with what was in the mind of the Law Reform Committee, or at least knowing about it?

MR NICHOLAS:   Yes, your Honour, certainly.

GUMMOW J:   And it seems a very limited charter.

MR NICHOLAS:   We would submit, with respect, quite clearly it was, and the way they dealt with it seemed to recognise that.  Indeed, we would call in aide the presumption which your Honour the Chief Justice expressed in Corporate Affairs Commission v Yuill, which we have stated, your Honours, at page 7, paragraph 8 of our notes - there is no need to go to the authority if I may say so - namely, that the presumption is that the legislature does not intend to abrogate a common law right or privilege unless a contrary intention is clearly expressed or implied in the statute, and that was ‑ ‑ ‑

DAWSON J:   But, Mr Nicholas, what rationale is there for the rule that once one tortfeasor is a release and there is no action against another, once the rule has gone, that the cause of action against joint tortfeasors merges in a single judgment?

MR NICHOLAS:   Your Honour, the rule has gone, to the extent and in the circumstances ‑ ‑ ‑

DAWSON J:   I know you say that, but the whole basis, if there ever was a basis for the rule in relation to releases, must be that there is a single cause of action.

MR NICHOLAS:   Yes, it is certainly that, your Honour.

DAWSON J:   That is what has gone.

MR NICHOLAS:   Your Honour, we would take issue with that, with respect.  That is not what the cases say.  What the cases say is that the rule in relation to merger has gone, with respect, and when my friend read to your Honours that passage ‑ ‑ ‑

DAWSON J:   That is true, but if the rule in relation to merger is the sole justification of the rule in relation to releases, how can it survive the abolition of the rule in relation to that?

MR NICHOLAS:   Your Honour, we would go back one step, if we may, and perhaps it is ‑ ‑ ‑

DAWSON J:   Or to put it another way, where there was only a single cause of action, now there are multiple causes of action.  Why should the release of one person in relation to a single cause of action constitute a release in relation to the others?

MR NICHOLAS:   Your Honour, the abolition of the rule came with the enactment of a statutory scheme to deal with the consequences of the abolition of a rule in relation to merger and the section deals with a situation where a tortfeasor has been sued to judgment and then it eliminates the bar, which obtaining of a judgment in one action might have been to proceeding against another joint tortfeasor in respect of the same tort.  So, what I am putting to your Honour, with respect, that it is incorrect to simply freeze on the concept of merger without looking at the way in which the legislature provided for the consequences of it.

DAWSON J:   I am putting a much broader proposition to you than that.  I know it is not a strong doctrine but it is really a case of cessante ratione cessat ipsa lex, is it not?  It is only a common law doctrine which depended on something and when that which it depended upon disappears, so does that doctrine disappear.

MR NICHOLAS:   Your Honour, what we would say to that, with respect, is that the foundation has not gone.

DAWSON J:   What is the foundation?

MR NICHOLAS:   The foundation is - I just want to take your Honour back to ‑ ‑ ‑

DAWSON J:   I mean, Duck v Mayeu does not give any assistance at all and that is said to be the origin of it.

MR NICHOLAS:   Your Honour, what the foundation of the rule was, and it went back to there being one cause of action - - -

DAWSON J:   Yes, and now there are many.

MR NICHOLAS:   Well, the fact that there are many, not generally, but in the circumstances where a plaintiff is seeking to recover judgment against the several, the many, by reason of litigating his cause of action.

DAWSON J:   I do not understand what you are saying there, Mr Nicholas.

MR NICHOLAS:   What I am endeavouring to say is this, your Honour, that section 11 is dealing with a rule, the foundation of which was the one cause of action, one wrong rule.  That foundation spawned a number of rules, one of which was the release rule, another of which was the merger rule.  The merger rule, and the related ones, have gone.

DAWSON J:   I do not understand that.  The merger rule is not a separate rule from the proposition that there is one cause of action; they are part and parcel of the same thing.

MR NICHOLAS:   Then, your Honour, perhaps I have not been putting it clearly.  Can I take your Honour to the way the Chief Justice dealt with it in XL Petroleum 155 CLR 456. Perhaps one should go back to the foot of page 455, the last couple of lines on that page:

The rule that only one judgment could be obtained in an action against a number of joint tortfeasors depended on the fact that there was a single wrong and a single cause of action.  In Sir John Heydon’s Case it was said that “the jurors cannot assess several damages against the defendants, because all is one trespass, and made joint by the plaintiff, by his writ and declaration ...”.....

“The unity of the verdict and of the judgment when the tort is joint is founded on and must stand with the legal theory of the liability of joint tortfeasors.”

In the same case Bray J said:

“It is but one cause of action.  If it is a joint tort there is only one wrong, not two wrongs.”

The same theory, that when two or more joint tortfeasors commit a tort there is only one cause of action, was also the foundation of the rule in Brinsmead v Harrison that a judgment obtained against one joint tortfeasor is a bar to an action against the others for the same cause of action, even if the judgment remains unsatisfied.  A person who suffered damage by reason of a joint tort had only one cause of action, and that merged in the first judgment obtained.  On the same principle, a release of one joint tortfeasor released all.

DAWSON J:   That is right.  So that they all stemmed from the same thing which now no longer exists.

MR NICHOLAS:   Your Honour, what XL is saying, we submit, as his Honour makes plain in the next sentence:

The rule in Brinsmead v Harrison was in effect abolished by s 5(1) -

and so on.

DAWSON J:   And it follows that so too was the rule in relation to the release of one joint tortfeasor.

TOOHEY J:   Or, if it was not abolished by the legislation, the question then arises:  the whole foundation of the rule having gone, should this Court endorse a particular aspect of a rule for which there may on one argument be no rhyme or reason?

MR NICHOLAS:   I suppose, your Honour, that turns on whether or not you read XL as saying that the whole foundation ‑ ‑ ‑

TOOHEY J:   No, not at all.  It is a different question.  You are approaching it as a matter of statutory construction.  What I am putting to you is really only an echo of what Justice Dawson was putting to you, namely that, although the legislation may not have dealt with the question of release, it dealt with the rule in all other aspects.  So that there is nothing left of the rule except possibly the implications it has for a release.  In that situation it might be argued that this Court should do something about that.  The other argument is that it is well entrenched.  If the Parliament thought fit not to address it particularly, then it is not for the Court to do anything about it.  But it is a different argument from a statutory construction.

MR NICHOLAS:   I see what your Honour is putting to me.

GUMMOW J:   I think, Mr Nicholas, it is in substance what Mr Bennett is putting in paragraph 11 of his outline.  Maybe it is a little elliptical, but I think that is really addressed to the common law, not to statutory construction.

TOOHEY J:   One way of answering the suggestion that I am putting to you would be to point to reasons why the rule should remain at least in relation to releases.  I mean, if there is an argument in that respect, then no doubt you will address it.

MR NICHOLAS:   Your Honour, perhaps it is convenient to go straight to it because, if I may say so with respect, your Honour has cleared up a lot of the underbrush because either we are right in putting to the Court that the effect of XL is not as wide‑ranging as my friend would say it is and that ties in, of course, with the statutory construction point.  Before dealing with, if I can say, the policy points, can I just conclude in relation to XL and, indeed, to Ramsay v Pigrim.  The question of release and the effect of this legislation on that rule was simply not addressed and one looks at the arguments and so on, and the issues in all of the cases and Duck v Mayeu and the cases flowing from it were simply not dealt with at all; indeed, there is no reference to them.

There is no reference to the release rule other than the Chief Justice’s reference at 456 and his observation of what Lord Diplock had to say in Bryanston Finance at page 459. It is simply not touched upon. Your Honour the Chief Justice - nor did Justice Mason refer to that rule at all and thus we would say it is quite plain that case was dealing with the particular issue in front of it, namely, whether or not exemplary damages would be available against one of the tortfeasors sued to judgment and that was the focus of the case. Likewise, in Ramsay v Pigrim there was no focus on the question of release at all.

Your Honours, moving away from that, we would say that if Parliament wished to abrogate in some way the opportunity of individuals to negotiate in relation to their claims, then they would have made that intention very clear.  It is not a light thing to infer, we would say, that the capacity of parties, whether or not they were involved in litigation in relation to a cause of action, to negotiate and to compromise on whatever terms they see fit would not be a matter for interference by the Parliament unless it made plain its intention to intrude into that domain.

TOOHEY J:   With respect, that is still the statutory construction argument, is it not?

MR NICHOLAS:   Yes, it is a ‑ ‑ ‑

TOOHEY J:   .....accepted that Parliament did not intend to address the question of release, for whatever reason.  The question still remains whether, the foundation of the rule having gone, it serves any purpose and, if it serves none, and particularly if it is likely to work an injustice, is it a matter for some development of the common law in that respect?

MR NICHOLAS:   Your Honour, in most cases where there is a continuing injustice - assume that - this Court will endeavour to develop the common law to enable that injustice to be overcome.  But what we would put in response to that, with respect, your Honour, is that the consequences of doing so may very well be far‑reaching and result in an unintended injustice to those who are providing releases.  We know that, properly advised, a plaintiff will not be giving up his or her claim if he enters into an arrangement, the effect of which is a covenant not to sue a joint tortfeasor, so the present - there is no injustice in a situation of that kind.

Coming at it from the other way, where a releasee is left, as I put a little while ago, with exposure to liability by reason of liability to contribute from another joint tortfeasor against whom proceedings have been brought by the releasor, then we would say that there may very well be a situation of unfairness.  Absent the structures which, for example, the Tasmanian legislature has seen fit to enact, in effect, to complement the effect of the legislation and the rights given in respect of contribution in section 11; absent structures of that kind, we would put that there may very well be unfair results from simply holding that there is no place any more for the operation of this rule.

In other words, with respect, any problem that such a conclusion might be seen to resolve is likely to leave unresolved and, indeed, to give rise to many other problems.  So we say, with respect, it really is not as simple as that.  It is not as simple, the consequences of such a holding, as my friend would advocate.  Your Honours, those are our submissions in respect of that point.

BRENNAN CJ:   Yes, thank you, Mr Nicholas.

MR NICHOLAS:   Your Honour, the matter that I wish to come to now is the innocent dissemination point.  We have summarised the findings of fact at the trial in paragraph 2 of our notes, and perhaps the particular matters that we would take the Court to are those set out in 2(b) through to 2(e):  the finding of the trial judge, in effect, that the role of the first respondent was that of a conduit; that there was no suggestion that Channel Nine was other than an entirely reputable television broadcaster.  We would also add the matters ‑ ‑ ‑

BRENNAN CJ:   But perfectly reputable broadcasters do broadcast defamatory matter, do they not?

MR NICHOLAS:   They do indeed, your Honour, but the point of it was in the context of the cases which deal with the defence of innocent dissemination is whether or not you have grounds to suspect that the material with which you are dealing is likely to be unsafe.  One can take the view, I suppose, that all television current affairs and live to air programmes are likely to be unsafe.  In response to that, your Honours, we would say that no assumption of that kind was established by the evidence.  It was not suggested to the witness called from Channel 7 involved with the distribution and dissemination of the Channel Nine segment that she considered that the programme was of a kind likely to take libellous material.  She was never challenged about that.

TOOHEY J:   Could I just ask you, Mr Nicholas - and I am not familiar enough with the evidence itself - to what extent did Channel 7 receive a programme in the sense of an indication of subject matter and, if so, in any detail?

MR NICHOLAS:   Not at all.  How it worked is this, your Honour.  Under the licence agreement Channel 7 took the programme live to air.

TOOHEY J:   Sight unseen?

MR NICHOLAS:   Sight unseen.  The evidence was - and we have indicated it on pages 1 and 2 - that there was no opportunity to preview.  There was no material that came down, say, the night before indicating that it is going to cover a variety of topics within the two‑hour current affairs programme that was coming the next day.

BRENNAN CJ:   Nor anything that morning?

MR NICHOLAS:   No.  The evidence was that it was produced in the Channel studios at Willoughby and it came immediately down the line.

BRENNAN CJ:   But is it not in the nature of a conduit that what enters at one end of the pipe comes out the other?

MR NICHOLAS:   Yes, your Honour.

BRENNAN CJ:   Well, does not that mean that Channel 7 took this programme, sight unseen as you say, on the footing that whatever might be sent to it it would disseminate?

MR NICHOLAS:   Yes, your Honour.  The evidence made that plain.

BRENNAN CJ:   So that the proposition is that any disseminator of a nationwide programme is an innocent disseminator unless they have prior knowledge that the matter to be disseminated is defamatory?

MR NICHOLAS:   Yes, but there is a matter that can be put further against us on that one, your Honour, namely, not only that it contains the libellous matter, the segment which is libellous, but it is of a nature - the programme itself is of a kind which would warrant concern.  In other words, if it was the type of programme which had, in the past, resulted in libellous material, or had attracted adverse comment by reason of the damage it had done, then it could be put against us that we would be on notice that this programme was likely to be dangerous.

DAWSON J:   But in an interview programme, people say anything.

MR NICHOLAS:   Well, your Honour, it was ‑ ‑ ‑

DAWSON J:   And there are precautions taken in the field of broadcasting.  I do not know about television, but there is a time delay, for instance, with talk-back programmes.

MR NICHOLAS:   Yes, certainly.  Your Honour, there is a distinction to be drawn, and it is important in this area, between the primary publisher, Channel Nine - produces the programme, has the people on air in the way that your Honour has put.  We maintain that in the circumstances of this case we were the subordinate publisher.  We were the distributor and the disseminator, so that the analogy between us and the lending library or the newsagent is apt.  Everyone would know, most newsagents would know that there is a fair chance that every newspaper that it sells is likely to contain libellous material.  Likewise, librarians on their bookshelves would know that those which they lend out may very well contain libellous material. 

So the distinction is a real one and the authorities make it very plain to distinguish between the original publisher to whom it is not available the defence of innocent disseminator and, your Honour, in such as the situation you were posing, the talkback radio, we do know that there is a delay system or a pause button or whatever so that the radio controller can obviously exclude the broadcasting on air of the stranger coming in with some damaging material and that system is there.  So the broadcaster of the programme which, for example, invites the talkback format will be responsible for all that goes to air over his systems.  He is the original publisher.  It is part and parcel of his programme that strangers come in and participate and all the risks that go with that and, your Honour, he would be seen to be the original or primary producer.

We say there is a difference in substance for the purposes of the availability of this defence between such a publisher and the publisher of the kind that Channel 7 was, namely the subordinate publisher, and we have endeavoured to identify the way in which the authorities make that distinction plain.  So we say, your Honours, that where the Full Court went wrong was that in applying to us the principles which would properly govern the operation of the primary publisher and did not look at us, as we say we should have been looked at, from the standpoint of the subordinate publisher.  Of course, there is the preliminary finding to be made before the defence becomes available, namely whether or not, in the facts and circumstances, Channel 7 could be seen to be a subordinate publisher.

DAWSON J:   It really is a very different situation to the situation of a librarian or even a newspaper distributor.  I mean, you are putting out this programme immediately to the public and are doing so for profit because you have advertisers which pay for the programme and you really have a direct relationship with the publication which people in a subordinate position of, for instance, a librarian, do not.  But what is the basis on which a subordinate distributor, or if the distributor is an innocent distributor, is relieved of liability?  Where is the innocence?  In that they rely on someone else to do the vetting or what?

MR NICHOLAS:   Your Honour, at the foot of page 2 of our notes, and at the top of page 3 we have set out what are the requirements to be established by someone seeking to avail itself of this defence: that it did not know that the book or paper contained the libel complained of ‑ of course, Emmens v Pottle was a century ago; it did not know that the book or paper was of a character likely to contain a libel, not necessarily the libel, but a libel; and that such want of knowledge was not due to any negligence on its part.

DAWSON J:   Here you have a live interview, in which your client does not know what is being said, or about to be said.  It does not know whether it is of a character that is likely to contain a libel or not.  It has no knowledge whatsoever.  It knows nothing about it.  It is saying it is the responsibility of someone else.

MR NICHOLAS:   Your Honour, we say that if we can bring ourselves within the principles ‑ ‑ ‑

DAWSON J:   Yes, that is true, but can you?

MR NICHOLAS:   Well, we say we can and we did and, your Honour, the way your Honour perhaps is suggesting that it is impossible to envisage a situation whereby a television transmitter, the relay of an immediate signal by a transmitter, would have available to it such a defence absent a system of checks or controls.

DAWSON J:   What I am saying to you is that the separate transmission of a television program is not analogous with a newsagent selling a newspaper produced by someone else.

MR NICHOLAS:   Well,, your Honour, can I respond this way; that a newsagent is in the business for profit, so it is not a question of reward.  It is a question of whether or not he has reason to suspect that the material that he is dealing with is likely to be libellous.  So, your Honour, libraries are there for reward and other disseminators ‑ ‑ ‑

DAWSON J:   The analogy is more with the newsagent putting up the poster outside the newsagency, is it not, rather than the selling of newspapers?

MR NICHOLAS:   No, with respect.

DAWSON J:   Because it is an immediate transmission to the public, and that has been held not to lie within the innocent distributor principle, has it not?

MR NICHOLAS:   The case that your Honour is thinking of, I think, is the Sun Life Assurance v Smith where the Smiths were the newsagents and they had in their various bookstalls throughout the United Kingdom - along with the parcel of the magazines and so on would come the posters to be displayed indicating the content of the material that was for sale.  Where Smiths failed in making good their defence was because the evidence made plain that the different shopkeepers unwrapped the posters, obviously read them, and displayed them, and thus were seized of an awareness of what the material that they had for sale was likely to contain.

DAWSON J:   You have got someone sitting in a television station waiting to make breaks to put in advertisements.

MR NICHOLAS:   No, but, your Honour, that overlooks the immediacy of it all.  What we have and what the evidence showed was that it came down the line into the studio and there were blank spaces at, say, every 15 minute intervals or whatever the timing was, there was a blank space and into that blank space with the pressing of a button a prearranged advertisement from Channel 7 would go out to fill that space and it would be timed so that when the programme resumed the ad would end and the body of the programme taken from Channel Nine would continue. 

So what we were saying, your Honour, and this is all that we said, that we did not have the opportunity if we were going live to air of previewing it or vetting it on the way.  There was no occasion for the implementation of a pause button or a delay.  We set up this defence, not from the standpoint of a primary first or main publisher, but as the subordinate, taking it down the line and disseminating it without these opportunities.  We simply did not see it.

GAUDRON J:   Or another way of putting it is you simply took the risk, which is equivalent or analogous to recklessness.

MR NICHOLAS:   Your Honour, if we fail because it can be said that we took the risk in the dissemination immediately of relayed matter, then we would say, with respect, that it is difficult to see how any ‑ ‑ ‑

GAUDRON J:   Taking the risk in a talk show.  I have not seen the show myself, I do not know what it is, but apparently you bring people in off the street and let them have their say about various things.  That is very risky, I would have thought.

MR NICHOLAS:   Well, your Honour, let me go back one.  The primary producer does that.  It is his or its program, and it is into the Channel Nine’s studio the person comes in off the street and so on.  You can say against us, of course, that we knew it was a live-to-air program, that is to say, that segments of it included people unscripted interviews.  Certainly we knew that.  The evidence made plain that we had been taking this program of this kind for many months, I have forgotten how many, and that ‑ ‑ ‑

GAUDRON J:   And you put your own logo on it, do you not?  You do not say TCN Nine, Sydney when it is broadcast?

MR NICHOLAS:   I am not sure about that, I can certainly turn that up.  I do not know the answer immediately to that.

GUMMOW J:   It would be misleading if you allowed that.

MR NICHOLAS:   I will look that up and see.  But in any event, there is no question about us being liable in general terms for the publication.  What we are seeking to do is to say, however, that is not the end of it and that there is no principle, we would say, imposing upon a subordinate publisher, the obligation to check material about which it has no suspicion as to be likely to contain defamatory matter.  Now one can repost by saying “Well everybody knows that current affairs programs may be libellous”.  We say that that was open to be an issue in this case.  My clients’ representative gave evidence to the effect that she had no reason to suspect that it would carry libellous material and her past dealings over the months had indicated that her view was well founded.  She was not challenged on that.

BRENNAN CJ:   Mr Nicholas, one can see that there is an analogy to be drawn between your situation and that of the newspaper vendor on the corner of the street in the sense that both might be described as subordinate publishers, but is there not this difference, that in the case of the newspaper, it is the newspaper proprietor who is the major publisher - the original publisher, if one likes to put it that way - within a very extensive area and that the distribution is effected through corner newsagencies, but in the case of your client, you are the major publisher, if you like, the original publisher, so far as the ACT and surrounding areas of New South Wales is concerned.  You are not a corner newsagent at all.  You are a Black Mountain Tower person, and that is rather a different situation from a corner newsagency.

MR NICHOLAS:   We would say not, with respect, your Honour.

BRENNAN CJ:   Why not?

MR NICHOLAS:   It really does not follow - one does not answer the question as to whether you are W. H. Smith or Angus & Robertson or the corner newsagent, or whether you are a vast library with vast resources for inquiry and checking and so on, and you are making available your books, magazines and so on, to a vast number of readers in the city of Canberra, or whether you are the local library in one of the surrounding ‑ ‑ ‑

DAWSON J:   The point is that this material would not have entered the airwaves of the ACT if it were not for you.

MR NICHOLAS:   Your Honour, that may be so, but so too, the paper is not going to come over one’s front fence in the morning.

DAWSON J:   No, but there are lots of people distributing it.

MR NICHOLAS:   Well, your Honour, with respect, it does not take away from the considerations which underlie the defence and make it available.  What one comes to look at, as we have endeavoured to say, is whether or not, given that we had no participation in the production, and all the matters that your Honour is familiar with, and we were, as we say we were, disseminating the signals into ultimately the viewer’s set.

BRENNAN CJ:   In practical terms, if your argument is right, assuming that most national programmes have their origin in one State or Territory, it means that five States and two Territories or six States and one Territory of the Commonwealth are without relief, so far as dissemination by television is concerned, if there should be a broadcast of a national programme live to air which is defamatory.

MR NICHOLAS:   Your Honour, no, with respect.  There will always be a right of action against the primary publisher or publishers, so in this case there would always have been a right of action against Channel Nine.

BRENNAN CJ:   Yes, but not against the person who actually does the dissemination, and if the originator of the programme should be overseas or insolvent, then that is no real answer.

MR NICHOLAS:   Your Honour, that is picking up what the Faulks Committee had to say, with respect, and what the majority had to say in this case, and we say this.  When one looks at what the Faulks Committee had to say and, indeed, when one reads what the secondary statement as quoted in those particular pages in the appeal book is saying, it is directing its attention to the situation of the primary publisher.

What came up in the Faulks Committee was the question whether or not the defence should be extended to a primary publisher to cover, for example, a situation where the member of the public came in on a talk-back situation as part and parcel of the programme or some unexpected activity was filmed which ultimately was damaging and they said no to that, because you would only be left with proceeding against the member of the public or the person involved in the display that you were filming, and the whole thrust of the restatement and of the Faulks Committee was directed not to this question at all, with respect, and we do indicate that in our notes.

BRENNAN CJ:   We will adjourn until 2.15.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.19 AM:

BRENNAN CJ:   Mr Nicholas and gentlemen, we are privileged to have sitting with us this afternoon His Excellency Dr Kessler, President of the Constitutional Court of the Czech Republic.  Dr Kessler will remain with us for so long as the case continues to be of interest to him and will take his leave at such time as he determines.  Mr Nicholas.

MR NICHOLAS:   Doctor, we will do our best.  Your Honours, can I bring you to page 5 paragraph 11 of our submissions and if I can take the Court to Weldon v “The Times” Book Company (1912) 28 TLR 143. I am told it was not on the list, your Honours. Can I hand up copies. Your Honours, as the headnote shows:

The defendants, who were book distributors, sold two books published in the French language in Paris, and which the plaintiff alleged contained libellous statements regarding her.  In an action by the plaintiff claiming damages from the defendants in respect of the publication of these statements, the jury found that the defendants did not know of anything libellous contained in the books, that it was not through their negligence that they did not know, and that the books were not of such a character as to put them on inquiry.

A detailed description of the books, your Honours will see, is a little further down the column in the smaller print:

The action was brought by Mrs. Georgina Weldon to recover damages for alleged libels contained in two books sold by the defendants.  The first book was entitled “Gounod,” by P.L. Hillemacher.  The second “Gounod,” by “Camille Bellaigne.”  The plaintiff alleged that the books contained libels.....The defendants pleaded that they were not the printers and publishers of the books; that they sold the books in the ordinary course of business, and did not know that the books contained libels on the plaintiff; and that their want of knowledge was not owing to any negligence on their part.

In the course of argument, your Honours, at page 144, about three‑quarters of the way down the left‑hand column, you see the passage attributed to Lord Justice Fletcher Moulton and he put this proposition to Mr Bankes:

If a bookseller sells the “Encyclopaedia Britannica” you surely do not suggest that he must read every word in it to see that it contains no libellous statement?

MR. BANKES said he did not say that, but that there must be evidence that the book was not of a kind to excite suspicion.  In a biography of this kind statements with regard to other persons were to be expected, and a bookseller or librarian ought to take care to have the book read before he offered it for sale.

LORD JUSTICE FLETCHER MOULTON said that if the law of libel was carried so far it would become a curse instead of a defence.

Over on the right‑hand column, the second paragraph, the Master of the Rolls said:

It was said boldly that the respondents, who were not publishers in the ordinary sense but distributors only, were liable in damages because they had distributed and sold these books, and this although it was admitted that they did not know of anything libellous contained in the books, and although the jury had found that it was not through their own negligence that they did not know, and that the books were not of such a character as to put them on inquiry.

Moving down to the next paragraph:

It was quite impossible that distributing agents such as the respondents should be expected to read every book they had.  There were some books as to which there might be a duty on the respondents or other distributing agents to examine them carefully because of their titles or the recognized propensity of their authors to scatter libels abroad.  Beyond that the matter could not go.  It was impossible to say there was a liability to examine the contents of books like the two in question, which were by authors of high character and related to a distinguished musician who had been dead for over a quarter of a century.  There was a book with which the Court was very familiar called “Farwell on Powers.”  He thought the author was a respectable man, and he had no reason to suspect that he would commit a libel on any one.  In his opinion there was no liability on persons selling that book to read it from cover to cover in order to see whether it contained a libel on Lord Justice Fletcher Moulton or himself.  That was not an unfair analogy to the present case.

We would say, your Honours, with respect, that on the evidence in this case, the trial judge has found that there was no basis upon which this programme and the history of my client’s association with it would have excited a suspicion or put them on notice of the kind of matters alluded to in this case, which picks up, of course, and applies, the principles that have been adumbrated in Emmens v Pottle.  Your Honours, we would simply say that the law does not impose such a general obligation to check or examine of the kind perhaps raised in the course of argument this morning.

Of course, all that we are putting and all that these cases proceed upon the basis of the person claiming the defence being found to be a subordinate publisher, and for the reasons that we put to the Court, we submit the facts make it quite plain that we are in this case and that the trial judge was correct on the findings on the evidence before him.

Lastly, your Honours, in paragraph 13 of our submissions, we refer to a number of very recent American cases.  I just simply give the Court the reference to them for this reason.  I will hand them up in a moment, your Honours.  I do not propose to read them to you.  They are cases which deal with electronic library and information dissemination services and what are described as electronic conduits which relay unedited feed to the recipients.  In each of the cases, of course, the question on whom the onus lies to prove that the electronic librarian, for want of a better term, or the information distributor, was not negligent, in the Emmens v Pottle sense, in distributing the material does not matter.

For our purposes, we say it is quite plain that the defence of innocent disseminator arises where it can be shown that there is no negligence in the sense with which these authorities are concerned.  So if we could just hand up to your Honours a copy of each of the three cases that are referred to, and we would say they provide a useful illustration of the application of these principles today in situations involving electronic communication.

Thus we would submit to your Honours that there is no sound reason of either policy or law why this defence should not be available to a broadcaster found to be a subordinate publisher and we would submit that Channel 7 is entitled to maintain this defence and that his Honour the learned trial judge was correct in finding it available to us.

BRENNAN CJ:   What is the reasoning in the CompuServe Case?  Is there any principle that has developed there that would be of assistance to us?

MR NICHOLAS:   There is no new principle, your Honour.  I give your Honours each of these cases as a recent illustration of the application of these principles to situations where there has been a dissemination of material to the viewers from, in this case, computer screens over an electronic information library.  In the Cubby Case the evidence established that there was no opportunity for surveillance, if you like, ascertainment or checking. The service provided a means by which contributors could disseminate information to subscribers directly and the court was satisfied that where it was shown that the disseminator was ignorant of any libellous content of the matter and in circumstances where he was not, as it were, on notice of the potential, then the defence was available, and your Honours know there is no new principle comes out of any of those cases, but they have been the best examples that we can find of their application in the situation of electronic communication.  An example close to our case, your Honour, is Auvil v CBS “60 Minutes”.  That will become apparent to the Court, with respect, when it is read.

Your Honours, can I in conclusion come back to matters concerning the joint tortfeasor question and perhaps taking up some matters that your Honour Mr Justice Toohey put to me in relation to reasons of policy and matters of that sort.  I will not go back to the matters of policy considered by the majority.  Your Honours will see them in the appeal book at pages 276, 277, 279 and 280.  Could we just put this in relation to what is contended to be the effect of the XL Case against us, and assuming for the moment that it does, in effect, abolish the concept of one cause of action, one wrong, so that one is left with a number of causes of action available in respect of the one wrong, that is to say that the unity of the cause of action has gone.

There still remains, with respect, the wrong which gives rise to the damage in respect of which the cause of action arises.  Our submission is that XL was concerned with, and certainly the section is concerned with, overcoming unfairness resulting from a judgment for an award of damages which might not be satisfied.

That question is of a substantially different kind than the question concerning a release and its effect whereby a plaintiff will have obtained satisfaction in respect of the wrong of which a complaint is made.  The amount of the satisfaction is a matter fixed by agreement and, plainly enough, the release will not operate until it has been paid.  So, if it be right for us to say that one is nevertheless still dealing with one wrong, one loss, one set of damages, then one is really addressing the means by which those damages might be recovered.

Obviously, one may proceed to judgment through the courts, or one may proceed by way of agreement release and a payment in settlement of the claim and in satisfaction of that claim.  So that the policy under section 11 enables a plaintiff to obtain recovery from those responsible to the extent of the award assessed by the court, and it provides the plaintiff’s right to recover successfully until recovery is complete.

Those considerations do not arise, we submit, when one is considering the effect of an agreement and the release which flows from that agreement because recovery will have been achieved as part of that process.  There is no reason, we would suggest, to proceed against others if, as a matter of fact, one has obtained satisfaction as a consequence of the process of negotiation and agreement.  The effect, perhaps, of maintaining the rule - and as we have said, we see nothing which supports the proposition that the rule has been abolished - but the effect of maintaining the rule, at the worst, may seem to be simply to deprive a plaintiff of the opportunity of having his claim assessed by the courts.

And so, assume for the moment that the effect of what the Court has said in XL against what we have submitted before, but assume for the moment that there are as many causes of action as there are joint tortfeasors.  Nothing is said to alter the situation which gives rise to them, namely, that there is only one wrong in respect of which compensation is payable, either by action or by agreement.  And so the focus still remains on the question of the damages which may be recovered.  Perhaps the exercise really is the route by which one proceeds to recover satisfaction or compensation from the damage occasioned by the wrong.

TOOHEY J:   I see the force of that, Mr Nicholas, and I do not want to reopen the discussion before lunch, but to describe it as a matter of policy - and I appreciate that the appellant’s submission so describes it - may not be the most accurate way of approaching it.  It may be something rather more basic than policy, if it be the case that the justification for the rule has gone, except leaving the rule unimpaired only in this particular instance.  It may not be just be a matter of policy as to whether the rule in respect of releases

should go or not but, as I think Justice Dawson said, if the basis for the rule has gone, the argument would then be that there is no justification for holding onto the rule itself in some limited aspect.  But that is really going over the same ground again.

MR NICHOLAS:   I think it is, with respect, your Honour.  Then the only thing that we would say, your Honour - perhaps it may be contended that there is some lingering unfairness if a plaintiff settles against one tortfeasor for a sum less than a court might be considered to award.  I do not know how one resolves that one.  Perhaps the way the Tasmanians have gone about it, namely, allowing one to negotiate, come to a figure, nevertheless preserve the opportunity to proceed against other individuals, perhaps in the hope that you might do better that way, and so there is a set‑off pro tanto from the amount that you have recovered, and after obtaining the assessment of the court rather than leaving it to negotiation.  It is interesting that the Tasmanian legislation obviously accommodates agreements by which a party covenants not to sue, as opposed to releases constituting a discharge.

GUMMOW J:   Is there anything as to the provenance of that Tasmanian legislation?  Does it come from somewhere else?

MR NICHOLAS:   I think it is an indigenous species, your Honour.  I have not got it, but we could certainly do something about that.

TOOHEY J:   It is earlier in time than the ACT legislation, although only just.

MR NICHOLAS:   Yes, it is.  Your Honour, perhaps we can make some inquiries about the material which led to it.  I have not got the speeches, I have not got the material, but we could certainly look for that.  I have not got an answer to that at the moment.  Your Honours, those are our submissions, with respect.

BRENNAN CJ:   Thank you, Mr Nicholas.  Yes, Mr McClintock.

MR McCLINTOCK:   Your Honours, I will hand up a number of copies of my outline.  Your Honours will be dismayed to see that it covers the same ground as Mr Nicholas’ outline of argument and I hope relieved when you understand that I will not traverse precisely the same ground orally. 

Your Honours, I do not want to say anything further about item A or item B.  That is whether the parties, CTC 7 and my client, Channel Nine, were joint tortfeasors or about the release cases themselves.  I do wish to say something further in relation to the effect of the legislation, and it is this.  With great respect to those who might be thought to have said otherwise, the joint tortfeasor legislation does not in fact abolish the rule that there is only one cause of action and it does not create a multitude of causes of action.  It certainly does not abolish that rule in all respects and for all purposes.  To make good that proposition, your Honours, I need to go back to what the position was prior to the legislation.

Your Honours, there were the following five rules regarding the liability of joint tortfeasors prior to the joint tortfeasor legislation.  They omit one of the rules Mr Bennett has in his submissions and add two others.  Those rules were these.  The first rule was the judgment rule, that is, the rule that only one judgment could be entered against joint tortfeasors and the cause of action merged in that judgment.

Rule two was that satisfaction by one joint tortfeasor discharged the obligation of all other joint tortfeasors.  The authority for that, your Honours, is Glanville Williams, and I will hand up sufficient copies of Chapter 2 of his work which deals with that.  The passage appears, in fact, on the front page of the copy.  The third rule was that all persons who participate in the tort were liable to judgment in the same amount.  The fourth rule was that there was no contribution between joint tortfeasors.

GUMMOW J:   Now, the first three but not the fourth are in Mr Bennett’s list, is that right?

MR McCLINTOCK:   The first three but not the fourth are in Mr Bennett’s list.  Mr Bennett does not refer to the no contribution rule between joint tortfeasors and I do not refer to the issue estoppel rule, if I could call it that, which we would say has an independent source not related to the issues here.  The fifth and final rule which predated the legislation was the release rule, that is, the release of one joint tortfeasor, whether by way of deed of release or by way of contract, accord and satisfaction as it is called, released all others.

Now, it may well be thought that the second rule, which I have mentioned, the satisfaction rule, and the fifth rule I have mentioned, the release rule, are in fact closely related.  The reason why is that those are matters that occur between the plaintiff, or the victim of the tort and the tortfeasor.  The remainder of the rules, the two judgment rules, deal with the litigious process, and the last rule, that is, the contribution rule, deals with relations inter se amongst the tortfeasors themselves.

Before I come to the legislation to show what the legislation actually did to those rules, it is perhaps convenient to mention now the Law Revision Committee Report which led to that legislation, your Honours.  It is on my list of authorities.  I do not propose to take your Honours to it in any detail other than to say that as Justice Gummow said before lunch, the committee’s task was only to consider the contribution rule and, by way of a sidewind at the end of the report, they mention and suggest dealing with the judgment’s rule.

The point of the reference though is to show to your Honours that there is nothing in that report which is closely reasoned which mentions the rule in relation to releases or mentions the rule in relation to satisfaction of judgments and, from that, I put the proposition to your Honours that there was no intention on the part of the authors of that report and, consequently, the English legislature and the Australian legislatures that adopted the legislation to do anything other than change the two rules with which they were dealing, that is, the judgment rule and the contribution between joint tortfeasor’s rule.

As I say, I will not take your Honours to the report but it is on the list of authorities and, in my submission, justifies the proposition which I put to your Honours.  Could I then go to the legislation itself?  It conveniently appears at page 266 of the appeal book in the judgment of the majority in the Full Court.  Section 11(2) of the legislation abolishes my first rule - that is the judgment rule - in the sense that no longer does an unsatisfied judgment discharge the joint liability.  However, it does not abolish the rule in the sense that a satisfied judgment still continues to discharge liability.  The wording of section 11(2) is, “Judgment recovered against a tort‑feasor”.  That, of course, means judgment entered against a joint tortfeasor, and leaves distinctly the position of a satisfied judgment against a joint tortfeasor in the same position that it was prior to the legislation.

Second, your Honours, it makes no change, at all, to my second rule; that is the rule that satisfaction by one joint tortfeasor discharges all joint tortfeasors.  There is nothing in the legislation that refers to that, and there is no basis upon which it could be inferred.  The rule remains as it is stated in Professor Glanville Williams’s text in the passage that I handed up to your Honours.

In relation to the third rule, that is, judgment in the same amount, the legislation modifies but does not abolish that rule.  It modifies it only to the extent that it is possible where there are punitive damages to have different judgments, or different amounts, against different tortfeasors.  The pre‑existing rule that judgment for compensatory damages must be in the same amount remains unhampered and unhindered and unaffected by the joint tortfeasor legislation.

BRENNAN CJ:   What happens to the satisfaction rule, then?  If one tortfeasor is liable to be mulct in exemplary damages?

MR McCLINTOCK:   The innocent tortfeasor is, of course, not liable there to contribute to the punitive ‑ ‑ ‑

BRENNAN CJ:   It is not a question of liable to contribute.  Does is the receipt of the smaller amount discharge the liability for the exemplary damages?

MR McCLINTOCK:   No, your Honour, it does not.

BRENNAN CJ:   Then the second rule does not apply.

MR McCLINTOCK:   With respect, your Honour, it does apply because at that point there are two judgments; one for a large amount against the main wrongdoer - Caltex in the XL Petroleum example, and another judgment against the innocent tortfeasor.  There would, in those circumstances, be two judgments:  one for compensatory damages only against, I think in that case I think the engineers who spiked the tanks; and another for compensatory damages plus the amount of the punitive damages found by the Court there.  The example is this, though ‑ ‑ ‑

BRENNAN CJ:   There is only one cause of action, is there not, against any particular tortfeasor?

MR McCLINTOCK:   Yes, your Honour, that is true, but the satisfaction rule, the way of testing whether it survives is to ask whether, if Caltex paid the amount of the compensatory damages to the plaintiff there, whether the engineers or the mechanics would themselves be discharged from liability, and the answer is, yes, they would be discharged from liability if that judgment was satisfied by the engineers.  Your Honours, the authority for the proposition that the compensatory damages have to be in the same amounts is the Wah Tat Case.  I will give your Honours another reference to it.  I will not take your Honours to it.  It is Wah Tat Bank v Chan Cheng Kum (1975) AC 507 and the reference is page 519. There are passages to the same effect in the judgment of Sir Harry Gibbs in the XL Petroleum Case and they appear at pages 460 point 3 and 461 point 3 of that judgment.

In relation to the fourth rule, the contribution rule, that, of course, is abolished by section 11(4) of the legislation.  The fifth rule is, like the satisfaction rule, nowhere touched specifically by the legislation.  Your Honours, when one actually considers the position and looks at what is left after the legislation, one has these survivors from the pre‑joint tortfeasor legislation position.  One has a judgment satisfied by one tortfeasor satisfies all causes of action against all tortfeasors, or discharges them would be a more accurate way of putting it.  Second, satisfaction of the obligation or the wrong discharges all other joint tortfeasors.  Third, compensatory damages must be assessed in the same amount, XL Petroleum only standing for the proposition that punitive damages can be awarded in a different amount against different tortfeasors.  That the release rule, in my submission, also survives the legislation. 

What the legislation was doing, your Honours, was to make some partial changes to the common law position to rectify two very specific and very serious deficiencies in the common law, the first that an unsatisfied judgment discharged the liability and, second, that there was no contribution between joint tortfeasors.  Your Honours, when one bears in mind what is left, there is immense scope for it to be suggested that there is still only one cause of action and that the release rule still has work to do in relation to that.  Your Honours, that is what I wish to say in relation to the materials that appear in my outline, I suppose, in paragraphs 4 and 5.  The materials in paragraph 6 is in a sense self‑explanatory and I do not need to belabour the points.  Mr Nicholas has made, I think, most of them and I adopt what he says in those respects.

Could I perhaps by way of amplification of paragraph 6(d) say a little more there.  Your Honours, there is nothing unfair about the present position¸ at least for people who are competently advised.  It is notorious, and every litigation solicitor and every barrister knows the rule, that the release of one joint tortfeasor releases another.  In daily practice one takes note of whether the document is framed as a release or a covenant not to sue.  The present position, if I could describe the release rule as the present position, is in fact a very useful device in the settlement of litigation. 

If one takes the current situation as an example, my client, Channel Nine, paid $50,000 in 1985 and obtained a release.  If the position that the release of one joint tortfeasor releases all is the law, my client was entitled to think that it need never worry again about the particular matter that led to the litigation against it; that is the programme that it broadcast, published throughout Australia on 21 February 1984.  Your Honours, there is no other ‑ ‑ ‑

GUMMOW J:   It ceased to have any form of contingent liability.

MR McCLINTOCK:   Yes, your Honour, and need not be worried about being dragged into litigation, as in fact happened to it, as a result of the proceedings brought by the plaintiff against Mr Nicholas’ client.  And, your Honours, that rule is the only way that that can be practically achieved.  It cannot be practically achieved by a covenant by the plaintiff not to sue anyone else; it is quite possible the plaintiff could sue someone else and it would be doubtful whether one could obtain the injunction to restrain the proceedings in the circumstances on the covenant.  The only way, with respect, your Honours, that the benefit - and it is a very real benefit - can be obtained is by the present rule.  It cannot practically be done by any agreement inter partes between the releasor and the releasee.

Secondly, your Honour, because everyone knows, if I can put it like this, of the existence of the rule, the distinction between a covenant not to sue or a specific reservation of rights where the releasee knows that there is a possibility, in fact a probability one would think, of litigation against him going on, he can tailor the price he offers to the releasor or to the plaintiff; in other words, he can bargain for something, there is a distinction between what he bargains for when he obtains a covenant not to sue and when he obtains a release.

What I am saying, your Honours, is that the present position is really useful and flexible, because it depends upon the intentions of the two parties, releasor and releasee - is a useful and flexible device in the settlement of litigation and that it would make it harder to settle litigation satisfactorily if that rule did not exist.  The fact is that the rule as it now stands is really little more than a rule of construction and if the parties want to vary the rule and not have the consequences of giving a release, they can readily do so and all the authorities, including Duck v Mayeu, say precisely that your Honours, up to cases like Cutler v McPhail which is on the list of authorities.

Your Honours, that is all I wanted to say in relation to the release point.  I do want to say some things in relation to the innocent dissemination argument which, of course, arises on my clients’ notice of contention, as on Mr Nicholas’.  Your Honours, that defence proceeds on the hypothesis that the defendant who relies upon it has proved a number of things, which compendiously add up to him being innocent of any fault in the publication of the material in question.

The doctrine, your Honours, is Vizetelly v Mudies’ Select Library (1990) 2 QB 170. It is quoted in I think Mr Justice Gallop’s judgment in this case, but I will take your Honours to the judgment itself to illustrate what the defence comprehends. The relevant passage appears in the judgment of Lord Justice Romer at page 180, where his Honour was summarising the cases and he said this:

The result of the cases is I think that, as regards a person who is not the printer or the first or main publisher of a work which contains a libel, but has only taken, what I may call, a subordinate part in disseminating it, in considering whether there has been publication of it by him, the particular circumstances under which he disseminated the work must be considered.  If he did it in the ordinary way of his business, the nature of the business and the way in which it was conducted must be looked at;  and, if he succeeds in shewing (1.) that he was innocent of any knowledge of the libel contained in the work disseminated by him, (2.) that there was nothing in the work or the circumstances under which it came to him or was disseminated by him which ought to have led him to suppose that it contained a libel, and (3.) that, when the work was disseminated by him, it was not by any negligence on his part that he did not know that it contained the libel, then, although the dissemination of the work by him was prima facie publication of it, he may nevertheless, on proof of the before‑mentioned facts, be held not to have published it.

It then goes on to deal with questions of onus of proof in those situations.  As I said, your Honours, ex hypothesi, for that defence to apply, the person who relies upon it must be innocent in that sense.  Those are difficult tests to satisfy, extremely difficult tests to satisfy in fact.  One has to negate negligence on one’s own part and that may not necessarily be easy. 

The second thing I wish to take from that passage, your Honour, is the meaning of “subordinate” as opposed to “primary publisher”.  The original publisher, as the authorities establish, is the person who creates the work in question.  Now, in this case, Channel Nine, my client in Sydney, was the creator of the work in question.  It made it.  It, in the course of the Today programme, brought the person in question into the studio and carried on an interview with her and the person who was with her.  It made the programme.  That is the meaning of the original publisher.

Mr Nicholas’ client was clearly only a subordinate publisher.  It had nothing to do with the making of the programme.  All it did was passively leave a switch open in its studios at Watson to enable a series of electronic impulses to come from Willoughby and go out through the television antenna here.  It did nothing more than that and it cannot correctly be described in any sense as an original publisher, any more than, for example, Telecom, which was the owner of the lines and the transmitting towers, that brought the electronic impulses from Sydney to Canberra could itself be described as an original publisher.

The fact that without CTC 7, the material would not have been published in the ACT and Queanbeyan is, with respect, not to the point.  In all the distributor cases, all the newsagent cases, the same proposition could be put.  In each of those, the material in question would not reach the individual recipient were it not for that newsagent.  If one thinks about one’s own local newsagent, if it were not for that newsagent, the material would not reach the local area which that newsagent covers.  That has never been thought to turn that newsagent into anything other than a subordinate publisher entitled to rely upon the defence in question.

The next proposition I wish to put to your Honours is about the meaning of the word “libel” in cases such as Vizetelly; what the courts are talking about when they talk about not knowing that the work contains a libel.  They are not saying, in my respectful submission, that the innocent disseminator is stuck with liability if he knows the material is defamatory.  The rule is that he must know that the material is unjustifiable defamatory and the sense of that rule can be tested very easily.  Every daily newspaper and, in fact, almost every article, contains material which is defamatory.

TOOHEY J:   When you say he must know, are you dealing with onus at all when you put it that way because the authorities are clear, are they not, that the onus lies upon the subordinate disseminator to establish what is said in, I think, Mr Nicholas’ precis to establish absence of negligence.  I am not quite sure what that means.

MR McCLINTOCK:   Your Honour, the authorities, with one exception, are uniform, that the onus is on the subordinate disseminator - perhaps two exceptions.  The one exception is Lord Denning in Goldsmith v Sperrings and the American Supreme Court, of course, where different considerations apply, has adopted a rule that all plaintiffs must prove negligence in relation to all publications.  The case is a case called Gertz.  But, your Honour, I am not seeking here to urge upon your Honours Lord Denning’s construction, or Lord Denning’s view, that is, that the onus is on the plaintiff to negate negligence.  I am content to accept the onus as it is found in all the authorities, other than that judgment in Goldsmith v Sperrings.

TOOHEY J:   I asked you the question, Mr McClintock, because you seemed to be putting it in terms of what the disseminator knew.

MR McCLINTOCK:   I was, your Honour, but that is because the first leg of the test as stated by Lord Justice Romer says that he was innocent of any knowledge of the libel contained in the work disseminated by him.  What I was attempting to deal with, your Honour, was the meaning of the word “libel” there because it is significant in this area.  The proposition I was putting was that every daily paper contains seriously defamatory material.  For example, I heard yesterday on the ABC the new Minister for Industrial Relations, Mr McMullen, accusing the current federal government of lying.  That is an accusation of dishonesty and it is seriously defamatory in one sense, but of course it does not take the matter anywhere for the person who is disseminating that material.  The reason why of course is that it is probably fair comment in relation to a matter of public interest, and so on.

The mere fact that defamatory material is disseminated of course, in my submission, takes the matter nowhere.  It has to be sheeted home to the disseminator the fact that the material was unjustifiably defamatory.  The authority for that proposition, your Honours, is again Lord Denning in Goldsmith v Sperrings.  I will not read it to your Honours.  It is set out in the appeal book in Mr Justice Gallop’s judgment at pages 221 to 223.

TOOHEY J:   Are you saying, Mr McClintock, that the defence is available if the disseminator is aware of the contents but not necessarily appreciative that the contents are defamatory?

MR McCLINTOCK:   Yes, your Honour, provided that lack of appreciation is not due to any fault on his part.

TOOHEY J:   How would fault arise if we are talking about appreciation?  It is a judgment brought to bear upon the contents, I suppose.

MR McCLINTOCK:   Yes, your Honour, but those judgments are very difficult to make.  My client, for example, keeps a number of solicitors employed to make judgments like that.  But there is an element of fault in the test, because the third element of it is the necessity on the part of the disseminator to negate negligence, as Lord Justice Romer said, that it was not by any negligence on his part that he did not know that it contained the libel.

TOOHEY J:   I just have difficulty with the idea of negligence in that sense.  Negligence ordinarily implies the failure to take steps that ought reasonably to be taken in the circumstances.  If you get to the point where you say that the disseminator was aware of the contents of this case of the television broadcast, so we are not really talking about any sort of examination that ought to have taken place prior to the broadcast.  But your proposition seems to be that unless the contents are self‑evidently defamatory or outrageously defamatory, then the defence still is available.  I am not saying it is wrong; I am just asking whether that is the proposition.

MR McCLINTOCK:   That is the proposition that I am putting and it really relates to the proposition that Justice Gaudron put to Mr Nicholas, that is, that his client took the risk in that sense and really I am dealing with, in a sense, what it means to say “when someone took the risk”.  For example, if the subordinate disseminator - just assume contrary to the evidence, because the evidence was that no one at CTC 7 saw any of this material and, in fact, the evidence was that CTC 7 knew nothing about it at all for 18 months after it was broadcast and until a letter of demand arrived in late 1985 after the settlement with my client, but assume contrary to the fact that someone at CTC 7 was actually monitoring this material and saw that the subject of it was making the serious allegations that she did make.  That does not mean, your Honour, that there would be anything wrong in not turning a switch then and stopping the publication.  The innocent disseminator there or the disseminator is not in a position to know whether those allegations are true or untrue.

DAWSON J:   That is why it is negligent.  You put on a live‑to‑air interview where a person can say anything they like and you do it for profit and then you say when something happens, “Well, we are innocent.”

MR McCLINTOCK:   Your Honour, it may well have been negligent for my client to have done that, Channel Nine.

DAWSON J:   The other person is doing exactly the same thing.

MR McCLINTOCK:   With respect, your Honour, they are not.  My client is the one who brings the person into the studio, who talks to them, who creates the material.  It cannot be said in any sense to be negligent for Mr Nicholas’ client ‑ ‑ ‑

DAWSON J:   Why not?  He has got exactly the same situation on his hands, his client.

MR McCLINTOCK:   With respect, your Honour, he has not because he has what he believes to be ‑ ‑ ‑

DAWSON J:   He is, to use Justice Gaudron’s words, taking the same risk or certainly taking no careful steps to avoid it.

MR McCLINTOCK:   Every newspaper distributor, every newsagent takes the same risk himself and it has never been sufficient to sheet home liability to that newsagent, that he says, “I am not going to read the Sydney Morning Herald from cover to cover and determine whether there is anything unjustifiably defamatory in it.”  He is entitled to rely upon ‑ ‑ ‑

DAWSON J:   But that is an entirely different situation where you have journalists who presumably know the law, who have written things, you have got an editor who is taking care.  Here you have someone that comes off the street and speaks to the world whatever they want.

MR McCLINTOCK:   With respect, your Honour, there was no doubt a producer of the programme at Channel Nine.  It was probably ‑ ‑ ‑

DAWSON J:   They have no control over it once the person started speaking unless they stopped the programme, but they do not that, they take the risk.

MR McCLINTOCK:   As Mr Justice Burchett pointed out, it was known in advance to my client, although not to Mr Nicholas’ client, what the woman was going to say. 

BRENNAN CJ:   How would a subordinate publisher ever know that the defamatory matter was being published unlawfully?

MR McCLINTOCK:   He would not, your Honour, and it imposes an impossible and unfair burden on people who play the subordinate role to do this.

BRENNAN CJ:   For what role is there for this concern about negligence even?  He simply just does not know.

MR McCLINTOCK:   Your Honour, there are some circumstances, for example, where there is litigation pending in Sydney over two editions of a book.  The innocent dissemination defence is relied upon by the printers and the distributors in relation to both editions of the book.  Litigation had been commenced over the first edition at the time that the second edition was published.  It might well be thought to be negligent for the publishers of the second edition to have published when they knew that there was litigation involving allegations of defamation against the author of that book, but it might be very hard to think of a situation where a subordinate distributor distributing instantaneously, like Mr Nicholas’ client, would be negligent, but the consequence of imposing liability here is really to say and unnecessarily so when one actually thinks about it for reasons I will come to ‑ is to say that there can be no defence of that for a live publication.

BRENNAN CJ:   Why was the Telegraph newspaper company liable in Bedford’s Case?  It may have been that Bedford was a bushranger.

MR McCLINTOCK:   Yes, your Honour.  I am not immediately sure how that relates, though, to ‑ ‑ ‑

BRENNAN CJ:   The letter came into the editor of the Telegraph, which was published.

MR McCLINTOCK:   Your Honour, to call someone a bushranger ‑ ‑ ‑

BRENNAN CJ:   May have been right or wrong.

MR McCLINTOCK:   It could not have been right at the time.  It could not have been literally right at the time in question.

BRENNAN CJ:   It was not suggested that there was a bushranger, in fact.  It was suggested it was a fair description of what was happening.

TOOHEY J:   It is still a cotemporary activity.

MR McCLINTOCK:   Yes, indeed, your Honour.  Your Honour, to go back to the proposition I was putting, when one asks what Channel 7did wrong, what it did wrong was rely upon Channel Nine to produce the material, as it was entitled to do.  That is the same as the newspaper distributor.

DAWSON J:   No, it is not, because it knows that what Channel Nine is doing is putting out something over which it has no control, whereas the newspaper editor, and those who advise the newspaper, are able to exercise control over what is in the newspaper, and there is some basis for reliance.  None here.

MR McCLINTOCK:   With respect, your Honour, CTC 7 does not know that Channel Nine had no control over the material.

DAWSON J:   But it is a live interview; here is someone put up in front of a camera and allowed to say whatever they want.

MR McCLINTOCK:   It is entitled to believe that Channel Nine has checked the background facts, as to use your Honour’s example, the newsagent is entitled to believe that the Sydney Morning Herald ‑ ‑ ‑

DAWSON J:   That is a different thing from knowing what has been said or is being said in the publication, which is the case of a newspaper, and not knowing what is being said.  Background is one thing, what is being said is another - about to be said.

MR McCLINTOCK:   If what your Honour is putting to me was right ‑ ‑ ‑

DAWSON J:   And it is what is being said, or what is about to be said that comprises the defamation; not the background.

MR McCLINTOCK:   But again, how does - I am, perhaps, repeating myself, but the fact that the ‑ ‑ ‑

DAWSON J:   What I am putting to you is that one takes the same risk as the other.

MR McCLINTOCK:   Your Honour, with respect, no.

DAWSON J:   Very well.

MR McCLINTOCK:   Channel Nine is taking a very different risk from what CTC 7 takes relying upon what Channel Nine has done.

TOOHEY J:   Your submission is really different from Mr Nicholas’s in this regard, is it not?  You would say, I gather, that it is not enough to argue that the subordinate distributor should have checked the material, you would say that really in the end it is a matter of whether the subordinate disseminator or distributor appreciated the legal consequences of the material.

MR McCLINTOCK:   I would, your Honour, and that is what Lord Denning says in Goldsmith v Sperrings, in fact.  The passage is:

unless he knew or ought to have known that newspaper or periodical contained a libel on the plaintiff himself; that is to say, that it contained a libel on the plaintiff which could not be justified or excused -

and that is the position I would urge, your Honours.

TOOHEY J:   That would be a very very strong defence indeed, would it not?

MR McCLINTOCK:   But, your Honour, there is every reason in principle why the defence should be as strong as that.  Mr Nicholas’ client had a claim for contribution against my client, in this case, and I was hard pressed then - and I am hard pressed now; things may change if there is a new trial ordered - to think of any reason why Mr Nicholas’ client should not be entitled to 100 per cent indemnity on the contribution claim, because when one actually looks at their respective degrees of fault, all one can say is that, compared to my client who made the material in question, Mr Nicholas’ client was wholly innocent, in any sense.  That leads on to the second or the next proposition which is this:  in all of these cases where there is an innocent dissemination defence relied upon, there is a viable claim, a viable cause of action against the original publisher.

Your Honours, my client could have been sued, assuming this material was broadcast Australia wide, in any State where the material reached and it would have been liable for everything that all the subordinate distributors - one assumes that there are tens or even hundreds of them all over Australia - my client would have been liable for everything that everyone of those distributors published.  Why?  Because under the rules, and they are set out in the passage in Gatley, which are on my list of authorities, my client authorised the publication, it knew it would take place, authorised the republication and therefore is liable for it.  What, if I could put it rhetorically, is the purpose in imposing a liability upon a subordinate distributor, ex hypothesis innocent, who is entitled to 100 per cent indemnity, or 100 per cent contribution, from the originating publisher.  All that does is lead to the unnecessary addition of parties to litigation and the running up of legal costs.  That is all that does, with respect, your Honours.

That , in my submission, is a powerful factor indicating that there ought not to be any liability on distributors in the position of Mr Nicholas’ client.

BRENNAN CJ:   Why was your client not entitled to a defence of innocent publication?

MR McCLINTOCK:   Because, your Honour, it could not be said - there was nothing in the work or the circumstances under which it came to him or was disseminated by him which ought to have led him to suppose it contained “a libel”, Lord Justice Romer’s phrase is, my phrase would be “contain something unjustifiably defamatory”.

BRENNAN CJ:   But I mean if the story that this woman was telling was true, did you have any reason to think that by republishing it nationwide you would be doing anything that was unlawful?

MR McCLINTOCK:   If we thought it was true.  Well, your Honour, that raises other issues about particular defences in defamation cases.

BRENNAN CJ:   It might raise it, but your whole basis is any person, save the originator of the defamation, who republishes defamation without knowing, or having cause to know, that the matter published is published unlawfully, is entitled to the defence.

MR McCLINTOCK:   Yes.

BRENNAN CJ:   Well then, why does that not fit precisely Channel Nine?

MR McCLINTOCK:   For two reasons, your Honour.  The defence has always been restricted in terms to someone other than the original publisher.

BRENNAN CJ:   You were not the original publisher, the woman was the original publisher.

MR McCLINTOCK:   Only in a very loose sense, your Honour.  If it was not for my ‑ ‑ ‑

BRENNAN CJ:   No, not a loose sense.  She published it to the interviewer.

MR McCLINTOCK:   Yes, but with respect, your Honour, the consequence of her speaking the words was that my client broadcast it.  It is not her that is the original publisher and, in that sense, my client created the program.  Without my client there could have been no program.  It was the interviewer whom Channel Nine provided who was talking to her and so.

BRENNAN CJ:   Without Channel 7 there would not have been any programme here.

MR McCLINTOCK:   Yes, your Honour, but that does not suggest that Channel 7 was the originator.  But in any event, your Honour, the authorities have always treated the position that in circumstances such as that, my client is the original publisher and is not entitled, for that reason, to rely upon the defence.  Your Honours, it might be one could justify a rule that an originating publisher could escape liability if he was able to negate negligence on his part.  Something very similar to that appears in section 22 of the New South Wales Defamation Act but it is not the common law, and it has never been thought to be the law in relation to original publishers.

Your Honours, the final thing I wish to say in relation to the law in general here, before I say something a little bit more about the specific facts, was that defamation law in many respects is very harsh upon defendants.  It is a strict liability tort in relation to publication.  A defendant can be found liable, even though he did not know that the material was in any sense defamatory.  The classic example is the true innuendo case where there is an additional fact unknown to the defendant which makes the material defamatory, but which he does not know about.

Your Honours, this is one, if I may say so, sensible way of ameliorating the harshness of the rules about publication here, that is, to permit it to apply to subordinate distributors such as Mr Nicholas’ client.  Your Honours, there are passages in the judgment which, with respect to their Honours below, we would say cannot withstand scrutiny.  The reasoning given by their Honours as to why the defence should not apply ‑ ‑ ‑

GAUDRON J:   But when you say its “defence”, does it mean that there was no tort committed by Channel 7 in Canberra?

MR McCLINTOCK:   The cases say that it means that there was no publication.

GAUDRON J:   So, no tort?

MR McCLINTOCK:   So, no tort.

DAWSON J:   So this is an alternative argument to the joint tortfeasor argument?

MR McCLINTOCK:   Yes, it is an alternative argument.

DAWSON J:   Select that - - -

MR McCLINTOCK:   Either of those arguments would be sufficient if they succeed to ‑ ‑ ‑

DAWSON J:   But they cannot both succeed.

MR McCLINTOCK:   With respect, the release argument can.

DAWSON J:   The release of the joint tortfeasor argument can but they cannot at the same time as the innocent dissemination because there would be no tort.

MR McCLINTOCK:   Yes, that is true but, if there were no tort, it would mean that Mr Nicholas’ client succeeds for that reason alone.  If there was a tort, then ‑ ‑ ‑

DAWSON J:   You rely on the other defence - - -

MR McCLINTOCK:   I am sorry, I understand what your Honours are putting to me.

GAUDRON J:   But the effect of this, at least in the theoretical level, is to import knowledge into publication?

MR McCLINTOCK:   Yes.  With respect, that may not be strictly accurate.  It imposes a burden upon the defendant who claims the benefit of the defence to prove that he did not know, could not reasonably have known, and his lack of knowledge was not due to any negligence on his part.  But yes, your Honour, it does and in that sense imports an element of knowledge into the publication element of the defence, and has been thought to do so since at least Emmens v Pottle which was decided over a hundred years ago.

Your Honours, the rest of the propositions that I wish to put are really covered by either my outline or by what Mr Nicholas said.  Those are my submissions.

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

MR BENNETT:   Your Honours, I hand to the Court two documents.  The first is an outline of submissions in reply to what my learned friends said before lunch.  The second is the summary of argument on the notices of contention.

BRENNAN CJ:   Yes, Mr Bennett.

MR BENNETT:   I propose to deal first with the point arising on the appeal and my reply on that and then come to the question of innocent dissemination.  If your Honours therefore go to the document which has two columns?  Dealing first with the joint or several torts point, which I will deal with very briefly, I was asked about the Moorehouse Case and my learned friend made some submissions on it.

The point about the Moorehouse Case is that it was discussing the meaning of the concept of authorisation in a particular section of the Copyright Act and what the Court held at 20.9 is that authorisation in that context is not limited to the authorising of an agent by a principal.  In other words, it is the other meaning of authorisation, including the licensing meaning, if one likes, the removing of an impediment.  That meaning, we would submit, simply has no applications for the purposes of The Koursk and the test about joint or several.

The second matter is my learned friend referred to Webb v Bloch.  That, of course, was a case where there was a much closer relationship between the solicitor and the publication.  It was a case where a committee of fruit growers got their solicitor to write a defamatory letter and then they sent it and the solicitor was liable for the defamation with them.  Secondly, it is not a case on joint tortfeasors.  It is a case on whether he was a tortfeasor at all and the case says nothing as to whether his tort was joint or several.

Thirdly, my learned friend referred to the passage in Glanville Williams and the analogy of the publisher and printer but, of course, the publisher and printer are engaged in a common enterprise in producing the book.  The reason they are in a common enterprise is that the publisher has an interest in printing it as he does in the bookseller selling it.  In this case, Channel Nine had no interest in Channel 7 televising this show.  It was a matter of total indifference to Channel Nine on the evidence whether Channel 7 rebroadcast it or not.  It paid a fee for the right to do so.

BRENNAN CJ:   Not even for the ratings purposes?

MR BENNETT:   There is no evidence of that, your Honour, and one wonders whether -  indeed, if one was putting that argument, one would say they were rival networks and, therefore, from the point of ratings, they might have a negative interest.  Mr Salmon tells me there were no ratings in Canberra, or were not at the time.

BRENNAN CJ:   I am not surprised.

MR BENNETT:   Your Honour, there is a difference between the situation where, like the letter to the editor, or like Reid’s Case or like the standard publisher and printer and bookseller, where the originator of the material has an interest in that material getting through, and the case where, once the initial payment is made, there is no interest in whether it goes through or not.

Turning to the section 11 point, my learned friend submitted - this is page 2 of the document with columns, that the effect of abolishing the rule in Duck v Mayeu would be that the release tortfeasor would be liable for contribution.  We dealt with that in paragraph 12 of our submissions.  It is interesting to note that in this case the injustice of what occurred, and what can occur, is demonstrated by the answer at page 101, because what my client said at page 101 line 18 as to the advice he got was - the question, I should say, is at line 11:

When you signed this document, the release that you had before you a few minutes ago, what effect did you think it had on your case against Channel 7 in Canberra?‑I asked Mr Christie what would happen if I signed it -

There was an objection, and then:

One thing that rings in my ears is what Mr Christie told me.  He said, “You can sign it” - he said - “and this will help fight the big one in Canberra.”

His view was that the case against Channel 7 was his big case and this was going to give him a fighting fund.  It seems to have had rather the opposite effect.

The point is one cannot assume, as my learned friend, Mr McClintock, blithely says, “Oh, everyone knows what the rule is.” There is room for confusion.  There will be room for confusion whatever the Court says the rule is, and people will get it wrong whichever way the Court puts it.  The question is whether, if one does nothing, it is a trap for the one or a trap for the other.  At the end of that day, that is the policy difference.

BRENNAN CJ:   If you are right, it means that it is possible, is it not, for a joint tortfeasor to obtain a release and thereby obtain an immunity from a liability to contribution?

MR BENNETT:   If he wants an immunity from liability to contribution, he has to word the release in a careful way.  What he has to do - there are a number of ways he can do it.  He can either take a covenant not to sue the other tortfeasor.  That is easy.  I should say my learned friend, Mr McClintock, submitted that that would not entitle him to an injunction or might not.  We would submit it would clearly entitle him to an injunction.  If Channel Nine had taken an undertaking not to sue Channel 7, one could hardly imagine a clearer case for an injunction to enforce a negative stipulation if we then proceeded to sue Channel 7 because he would suffer detriment from my doing that.  So that is the first way one can do it.

The second way one can do it, if one wants to preserve the right to sue the other tortfeasor but is concerned about indemnity, is to take an indemnity from the plaintiff in relation to any amount which is recovered by the other tortfeasor against the releasing tortfeasor.  In other words, in this case what would be done would be for my client signing the release with Channel Nine to say, “I am going to sue Channel 7.  If I do and they get anything from you, I will indemnify you against that and to secure that against the potential verdict against Channel 7.”  It is a little bit complicated in the document but one could do it effectively and safely.

BRENNAN CJ:   Mr Bennett, associated with that is the drafting of subsection (4) which troubles me a little.  What is the meaning of “joint tortfeasor” if your argument is right?

MR BENNETT:   The reason for putting it that way was this, your Honour, that the rule being abolished in subsection (2) was a rule relating to joint tortfeasors.  It was, therefore, necessary to refer to them in the subsection.  When the draftsman got to subsection (4) he wanted to make it clear that that was to apply whether or not the person was a joint tortfeasor.  The significance of the concept was being abolished.  The concept itself no doubt might remain.  In other words, it might still be correct for a law professor to say to a student, “There are joint torts and there are several torts and this is the difference.”

BRENNAN CJ:   But are they?

MR BENNETT:   But the law professor would then have to add that it makes no difference.  There is a distinction but it makes no difference in law, but the ‑ ‑ ‑

BRENNAN CJ:   I mean, if your argument, based upon what was said in the Caltex Case, is right, there are no joint torts.

MR BENNETT:   No, your Honour, there is no difference and a joint tort no longer has the characteristic, which was ascribed to it by the common law, of being a single tort, but the descriptive phrase can still be used, if one wants to for historical reasons, to describe that type of tort.  In the legislation which was having that effect, the draftsman did not have the luxury of assuming that the distinction did not exist because it is the very distinction he is abolishing.  So he needed, or she needed, in subsection (4), to spell out that tortfeasor meant the two types.

GAUDRON J:   But it may be qualifying those who would, if sued, have been liable rather than those who are sued?

MR BENNETT:   It is limited to that, your Honour, but the ‑ ‑ ‑

GAUDRON J:   It is not naturally so limited, but that is one way of reading it.

MR BENNETT:   Yes, but as I understand the Chief Justice’s question to me, he was concerned about the fact that the word is used, although I submit the distinction is abolished.  My answer is that the word still has an English meaning.  The draftsman needed for clarify to use it to show that he was meaning all types of tortfeasor, whether the characterisation is one or the other, even though he is by the overall section abolishing the significance of the distinction.

TOOHEY J:   But it is a fairly natural use of the word there, is it not, because the subsection is speaking about the present and the past, “a person who is or would, if sued, have been liable”?

MR BENNETT:   Yes.  That is another reason, your Honour, I respectfully adopt that.  The next matter - this is the third point on page 2 of the document with columns - my learned friend submitted that what was said to be abolished by the section in Caltex and Wah Tat was the merger rule, not the one tort rule.  We, first of all, say that is not what the then Chief Justice or the present Chief Justice said in Caltex, and I am not going to repeat my submissions on that, but the second point is this:  if my friend were right, the logic would still support me.  If my friend is right in saying, really, there are three rules.  There is the merger rule of which there were three aspects, three of my rules concerning judgments are aspects of that; there is the one amount rule which is separate and the release rule which is separate.  So three things have been spawned by the one tort rule.  Merger with its subaspects, one amount and release.

In Caltex, the Court said that the effective section 11 was not merely to abolish the merger rule.  It extended to one of the independent limbs the one amount rule.  If that is so, why does not the logic equally say that it extends to the release rule?  So, in that sense, my friend’s argument about the nature of the merger rule rather makes Caltex even more strongly support the submission which we put.

Now, finally on that, there is one minor matter which I meant to say in-chief and omitted to do so - it does not arise out of my friend’s submissions - but in answer to a question your Honour Justice Dawson asked me this morning relating to the origin of the release rule, I referred your Honour to the word “therefore” in Cocke v Jennor.  I did not add that exactly the same proposition appears in Duck v Mayeu itself at page 513, and that is referred to by Sir Harry Gibbs in Caltex.

My learned friend, Mr McClintock, made some submissions about section 11.  His submission about satisfaction being a separate category and one which remains is not, in our submission, supported by any authority.  For the reasons which I have submitted before, it is contrary to Caltex and to Wah Tat.  My learned friend referred to the difficulty in settling.  In my respectful submission, there is no difficulty in settling for the reasons I gave a few minutes ago.  One could take a covenant not to sue, one can take an indemnity.  My friend referred to the dissenting judgment of Lord Denning in Sperrings.  It is important to bear in mind it is a dissenting judgment and that it does not, for that reason at least, apart from anything else, take my friend as far as he wishes to go.

Finally, my learned friend, Mr McClintock, submitted on that aspect that there was no evidence that anyone at Channel 7 saw the show.  We find that evidence at page 113 and it starts at line 15.  This is the officer of Channel 7 giving evidence, a Ms Brown.  At line 15:

I just want to put this to you; once a program is coming that way into your station at Watson, the only way it goes out over your network is because of switches that are operated and buttons that are pressed ‑ ‑ ‑?---Panels, panels.

Panels at Watson?---That’s right.

I think you gave some evidence about the segments that are provided, segment times that are provided?---Yes.

What you try and do is have somebody operating these panels so that an advertisement is commenced at the appropriate gap in the program from Sydney?---That’s right.

That advertisement - is this the case - it overplays the one that’s coming through from Sydney?

So, just stopping there, the question there is:  does the advertisement also come through from Sydney, the Sydney advertisement, which is then overplayed by the Canberra advertisement?  Answer:

No, it doesn’t.  It goes to black from Sydney, there is a ‑ ‑ ‑

It goes to black?---It’s just a black window.

In other words, there is a screen showing the Sydney show somewhere in the studio and that panel, that screen, goes to black when the advertisement comes on.  So the negative there at least establishes that there is, as one would expect, some video screen showing what happens which someone is monitoring for the purpose of putting the Canberra advertisement in as soon as it comes to the blank.

I turn now to innocent dissemination.  Your Honours, the problem here is that my learned friends are endeavouring really to fit a square peg into a round hole.  The round hole is Emmens v Pottle, a case laid down at a time when there were no electronic media and the case concerned a newsvendor and the question was whether, when he sold a newspaper containing a libel, there was a defence of innocent dissemination, which the court found to exist as a matter of common law and the rule protected an innocent disseminator who resold a newspaper which he purchased.

The first point to note is the conceptual point - this is before I get to the substantive and merits points - but conceptually what he did was quite different.  He purchased a physical object and he sold it.  By contrast Channel 7 received an electronic transmission by microwave through the Telecom network and then it causes a new and independent electronic transmission to go out.  I have used the words at a different frequency.  That I probably should not say because that does not appear in the evidence.  What I should say is by a different process because what goes out is something transmitted into the airwaves and picked up by aerials on people’s roofs or on top of their television sets.

What comes from Sydney is something that comes via a Telecom facility, a completely different procedure.  So what it does is it receives something, it goes through machines which we do not need to understand for this purpose and then something goes out into the ether, but that something is certainly the same subject matter as what it receives, so in one sense it is very easy to say, “It sends out what it receives,” but, of course, as a matter of physical objects or electrons or waves, what goes out is not the same thing that comes in.  It is not the shop buying a newspaper and selling it.  It is rather, if you like, the shop buying a newspaper, photocopying it and selling the photocopy.  It is something which contains the same material but which is a different - “object” perhaps is the wrong word, but a different thing which goes out - form of transmission.

It is interesting that Emmens itself at page 357 point 2 makes it clear that the doctrine does not protect an innocent printer.  So if the publisher goes to a man who owns a printing press and says, “Here is a book or newspaper written out, please print it for me”, and the printer does that, the printer may well be publishing and he is not protected by the doctrine of Emmens v Pottle.  He is not protected by it because he is creating a new thing, he is not simply buying and selling something.

GAUDRON J:   Or is it because he must know what he is doing.

MR BENNETT:   That is the second part of the argument, your Honour.  I am coming to the ‑ ‑ ‑

GAUDRON J:   Yes, but that is another point of distinction, with the printer.

MR BENNETT:   Very much so, your Honour, yes.  But the point I am making at this stage is before one gets to what I have called the merits arguments and the reasons for the rule, if one just takes the rule itself conceptually and says does this rule apply as a matter of conceptual analysis to what occurred in this case, the answer has to be no.

GAUDRON J:   Yes, but I am wondering whether the reason that the printer is outside the rule is as you have stated.

MR BENNETT:   He never came in it, your Honour, because the rule was a rule created for newsvendors and, by extension, booksellers.  It never went further than that, and it was not a rule which said, as my friends would like it to say, anyone innocent along the line is protected.  The rule never said that.  The rule was a special rule governing a special class of person.

GUMMOW J:   That is how the Forbes Committee treated it in the 1970s.

MR BENNETT:   Yes, it was, your Honour.  So that is the first aspect, but let me come to the policy considerations because these are much more substantial.  Let us assume that one can say “Oh well, we simply apply 19th century concepts of the common law to modern electronic communications and we adapt our principles to make them fit and this really looks like the innocent bookseller”, which is really what my friend is saying.

First of all, unlike newsvendors, television stations are well able to inquire from other stations about the nature of what they are going to broadcast.  It is hardly a heavy onus for Channel 7 to ring Channel Nine and say, what is the material you are selling us tonight?  It is not an onerous obligation.  It is not like the newsvendor having to read The Sydney Morning Herald from cover to cover; that is the first point.

Secondly, unlike newsvendors, television stations have the sophistication and staff to view what they rebroadcast before rebroadcasting it, to form a view as to whether it is defamatory and to obtain advise.  My learned friend, Mr McClintock, very generously made the concession in argument, which I respectfully adopt, that his client engages a number of solicitors who advise as to whether material is defamatory before it goes on the air.  No doubt my learned friend Mr Nicholas’ client has similar functionaries.  One would expect a television station to do so.  Even if it does not, it has access to solicitors and probably has access 24 hours a day.  It is an easy thing for them to do, to view what they rebroadcast, to form a view about whether it is defamatory and to obtain advice if necessary.

Thirdly, newsvendors, and even book sellers, usually have limited staff and sell large numbers of newspapers and magazines.  Television stations are likely to have many more staff, but more importantly, they only broadcast one programme at a time.  If one had a book shop where all the book shop did was have one thing going out at any one time, it would not be all that onerous to read it or look at it before selling it; it is a very very different type of operation.  You have got a large staff and only one thing happening; it is not very hard to find out what is happening and make inquiries about it.

Fourthly, my learned friend’s answer to all this is, but this was instantaneous; we did not have the opportunity.  There is no evidence at all to the effect that the immediate rebroadcasting procedure was necessary or unavoidable and the onus must lie on my learned friends to establish that.  It is not a question of us not asking questions about it; it is a question of them not establishing it.  Four point fiveis the obvious point, I suppose, that the rule was designed to protect a particular class of persons, newsvendors, and by extension retailers of printed material, and those who devised it never applied their minds to the policy considerations or logical considerations which apply today.

The sixth point is that the potential for damage by a television station is far greater than the potential for damage by a newspaper or other printed material.  Your Honours can probably take judicial notice that far more Australians watch or listen to the electronic media than read newspapers, and the potential for damage is therefore enormous.  Also, I suppose, one can take judicial notice that a person who reads a newspaper on the average would probably be a person who is more likely to be able to exercise judgment about it than a person who watches a television programme, if one takes the broad average.  So again, it is far more important, one would have thought, that care be taken.

Seventhly, the availability of the defence might enable a television network to structure its affairs so that its solvent operating company is the rebroadcaster, the innocent disseminator, while the original publisher is overseas or impecunious.  Modern technology may make it almost impossible for someone to find where the signal comes from.  Today, signals can be sent very easily all over the world, and one can pick things up in one country and send them somewhere else.

Let me give a simple example.  Suppose allegations are made in Italy about a person in Australia, defamatory of that person.  Those allegations go on Reuter or AAP and are picked up by Australian television stations and simply rebroadcast.  What remedy does that person in Australia have?  He cannot effectively go to Italy and sue the Italian television station which created the show but, if my learned friend is right, the local station can say, “We just decided today to publish the Italian news direct from channel X in Rome, and therefore we’re innocent disseminators”.

GUMMOW J:   It does happen.

MR BENNETT:   It does happen, your Honour.  As a matter of policy, that would produce, we would respectfully submit, a totally unsatisfactory result.

There is a decision in the United States which upheld the present submission.  In as early as 1934, that is a case on our list - the case of Coffey v Midland Broadcasting Co 8 F Supp 889, the decision of a District Court for the western district of Missouri in 1934. It is the paragraph beginning at page 890:

I conceive there is a close analogy between such a situation and the publication in a newspaper of a libel under circumstances exonerating the publisher of all negligence.  The latter prints the libel on paper and broadcasts it to the reading world.  The owner of the radio station “prints” the libel on a different medium just as widely or even more widely “read”.  In the case of the newspaper publisher absence of negligence is no defense.  Yet he is not helpless.  He knows that without any fault of him or of any of his employees some one some time surreptitiously may insert in his paper some line of libel.  He takes that risk.  He can insure himself against resulting loss through the subscription and advertising rates he charges or otherwise.  The owner of a broadcasting station knows that some time some one may misuse his station to libel another.  He takes that risk.  He too can insure himself against resulting loss.

Then there is a distinction drawn with a telephone company in the next paragraph which is said to be in a different situation and that seems to be the approach taken in the recent cases my learned friend referred to where there is someone who is genuinely passive.  No one suggests that in this case my client could have sued Telecom because the message is passed along its facility, but the production by a television station is, in our respectful submission, something quite distinct and separate from the act of a mere newsvendor or bookseller.  In relation to reasonable care we make these very short submissions and these appear on page 3.

DAWSON J:   They are really repetitive of what you have already said, Mr Bennett.

MR BENNETT:   They are, your Honour.  I do not think I need to go through them.  Your Honour Justice Gaudron asked my learned friend, Mr Nicholas, whether his client took the risk.  At page 115 of the appeal book at line 23, that question was put to Ms Brown by Mr Salmon and the question is:

No, of course not.  In other words, you just took the risk that anything coming from Sydney would be put over your programs here?‑‑‑That’s right.

GUMMOW J:   The real problem in a way, Mr Bennett, is that in this licence agreement they did not have a proper indemnity to deal with this defamation possibility.

MR BENNETT:   Yes, that is so, your Honour, nor, of course, any undertaking on the part of Channel Nine to the careful although, no doubt, there was.  There are two other matters.  My learned friend, Mr Nicholas, commenced by saying that part of what was put on the joint or several torts point was put differently below or was not put in the same way.  I am not sure your Honours want to hear me on that.  If you do, my learned junior has a wealth of material showing the way the matter was argued below.

BRENNAN CJ:   No, we do not need to trouble you on that, Mr Bennett.

MR BENNETT:   No.  The other matter concerns costs.  The trial court ordered costs against my client.  The Full Court made no order as to costs.  If we are successful, we of course would seek orders for costs in all three courts.  The final matter is that I was told last night, but have not had the opportunity to verify it, that there is an unreported decision of the New South Wales Court of Appeal in an interlocutory matter over the last year which may involve some of the issues in this case.  I have not been

able to get a hold of it this morning.  Might I have leave in the next seven days, if I can locate it, to obtain a copy and make it available to your Honours and my learned friends without any further submissions?  I do not know if I will be able to.

BRENNAN CJ:   Yes, Mr Bennett.

MR BENNETT:   If the Court pleases.

BRENNAN CJ:   Mr Nicholas, do you have anything you wish to say in response to that?

MR NICHOLAS:   Very briefly, your Honour.  First of all, in relation to that last reference to the unreported decision, your Honour, I think I can help you.  It was an interlocutory judgment.  It really does not take these matters any further.  It was from a strikeout application before the facts had been determined as to whether or not innocent dissemination could be established and the Court took the view that it had been wrongly struck out by the trial judge before the evidence had been considered and, so, we would think you would find little assistance.  I am happy to help my friend get it, but I do not think the Court need be troubled by it.

Your Honours, just very briefly:  the square peg and the round hole.  We would simply say, for the reasons that we put earlier today, that the principles in Emmens v Pottle and the cases which considered them in the succeeding 20 or 30 years are eminently adaptable to accommodate the advances and technology today.  As far as the example of the printer is concerned, the reason why the printer was brought in because it was found that he was directly involved in the production process and, additionally, or perhaps more importantly, why this defence was unavailable to him was because, in the days of hot press and so on, he had the opportunity to read and consider as they set up the printing processes.

Interestingly enough, in a case which I think we put on our B list, of Jensen v Clark (1982) 2 NZLR 268, particularly at page 274, this defence was considered in relation to the printer of a university campus magazine, and the argument was put that modern printing methods had rendered the production processes such that a printer now is involved in electronic machinery, not contemplated many years ago, no longer a compositor engaged in the old processes, photomechanical processes which afford no opportunity of reading, considering and so on. The court did not have to decide that issue, although was attracted by the argument. Where the printer failed, of course, is because he was aware, from past experience, of the nature of the campus newspaper as being one with the propensity to carry

likely defamatory material ‑ that would not come as a surprise to anybody ‑ but nevertheless, that was the ground on which it failed by a direct application of the principles that are well established.

So, we are saying, with respect, that in this case, as we have put before, that really one is dealing with the particular facts and circumstances found by the trial judge.  We would say it is perfectly open for the trial judge to come to the conclusion that he did, based on the facts found by him, and that no error has been shown in the conclusion which he came to in the circumstances of this case.  If the Court pleases.

BRENNAN CJ:   Thank you, Mr Nicholas.  Do you have anything you wish to say, Mr McClintock.

MR McCLINTOCK:   Very briefly, your Honour.  Two propositions; first, Mr Bennett referred to Coffey; the point was never taken or argued in that case about innocent dissemination and it really is not authority for any proposition.  Second, on that point, American law is now, as Mr Nicholas and I contend it should be in this country, that is a television station which is subordinate can take advantage of the defence.  The authority is Auvil v CBS “60 Minutes”, to which Mr Nicholas gave a reference, 800 F.Supp 928.  The second proposition ‑ ‑ ‑

GAUDRON J:   I am sorry, could I have that reference again?

MR McCLINTOCK:   It is Auvil v CBS “60 Minutes” (1992) 800 F Supp at page 928 and it establishes that the modern law in the United States is not as might be thought the restatement suggests it is and is not as Coffey suggested in 1934 it might be, although as I said the point was not taken there.  The case deals with, as I said, precisely the situation that is here, a subordinate television distributor, and relies, for example, on the fact that there is a deep pocket defendant liable to be sued, that is someone in the position of Channel Nine, my client in this case, and that therefore it is ‑ ‑ ‑

GUMMOW J:   The structure of the television industry is quite different in the United States, it has a large number of small regional stations.

MR McCLINTOCK:   Your Honour, it is the same in Australia.  In recent years, there has been establishment of networks here, but there are still a very large number of small stations which are not controlled by the networks and which, for example ‑ ‑ ‑

GUMMOW J:   Do not take us through the history of the broadcasting ‑ ‑ ‑

MR McCLINTOCK:   No, your Honour, my lack of desire to do so is equal to your Honour’s lack of desire to hear me on that topic.  One final point, your Honour:  impecuniosity, or insolvency of the publisher.  That has never been thought to operate to preclude a company like Gordon and Gotch from having the distributor defence in relation to a magazine such as The Spectator which comes from England.  Nor has the risk that the publisher of a particular book, or the author of a particular book, may be insolvent for it to prevent a company such as Gordon and Gotch from relying on that defence also.  For those reasons, your Honour, there should be no equal restriction imposed upon a television station.  That is all I wish to say by way of reply, your Honours.

BRENNAN CJ:   Thank you, Mr McClintock.  The Court will consider its decision in this matter.

AT 4.05 PM THE MATTER WAS ADJOURNED