Radio 2UE Sydney Pty Ltd & Anor v Habib [2010] HCATrans 98 (23 April 2010)

Last Updated: 29 April 2010

[2010] HCATrans 098

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S208 of 2009

No S209 of 2009

B e t w e e n -

RADIO 2UE SYDNEY PTY LTD ACN 000 796 887

First Applicant

MACQUARIE RADIO NETWORK LIMITED ACN 063 906 927

Second Applicant

and

MAMDOUH HABIB

Respondent

Applications for special leave to appeal

FRENCH CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 23 APRIL 2010, AT 10.01 AM

Copyright in the High Court of Australia

MR G.O’L. REYNOLDS, SC: May it please the Court, in this matter I appear for the applicants, with my learned friend, MR M.F. RICHARDSON. (instructed by Banki Haddock Fiora)

MR C.A. EVATT: I appear with MR W.B. NICHOLSON for the respondent, your Honour. (instructed by Peter Erman Solicitor)

FRENCH CJ: Yes, Mr Reynolds.

MR REYNOLDS: If the Court pleases, I submit that special leave should be granted in this case, essentially for two reasons. The first is that it raises questions of law of importance and the second is that the interests of justice support a grant of leave because, in my respectful submission, the Court of Appeal’s reasoning was not supportable. May I begin by taking the Court to the application book at page 178 at line 50? Your Honours will see there that Justice Handley, referring to a decision of Thompson v Lambert, articulates the following principle, namely that:

“it was an abuse of process to bring a second action for substantially the same publication of the same libel . . . against different defendants”.

To similar effect is the statement made in the leading text, namely Gatley on Libel and Slander, which immediately follows in that paragraph, namely that:

a “claim may also be struck out where the essential facts and matters going to liability would be the same as those already raised in earlier proceedings which were brought by the same [plaintiff] against another defendant in respect of a similar publication and which either failed or were abandoned –

That is important here “by the [plaintiff]”. Now, as your Honours will see from paragraph 25 below that those principles have been endorsed in a number of cases. In my submission, the correctness of the principle articulated by Justice Handley, who, your Honours will recall, is the joint author of Spencer, Bower and Handley: Res Judicata - the correctness of those principles, stated both by Gatley and by Justice Handley, are issues of importance which I submit this Court should consider. The Court touched on these issues, namely the Thompson v Lambert principle in Dow Jones v Gutnick - - -

FRENCH CJ: Is there any dispute in this case about the general principles?

MR REYNOLDS: I anticipate there is, your Honour, substantial dispute about that.

FRENCH CJ: About what constitutes abuse of process?

MR REYNOLDS: Indeed, but there is a particular principle that applies in these defamation cases as articulated there by Justice Handley and in Gatley. Now, we submit that if that is the principle as stated there in Gatley and by Justice Handley, then there cannot be any doubt, we submit, with respect, that my client succeeds. The second aspect of these issues of principle, I submit, is the question of the extent, if any, to which qualifications need to be placed on those principles.

The first possible qualification, which we have raised in our submissions at page 179, is the issue of whether there has to be a judgment on the merits in the first action or whether, as here, a judgment by consent is sufficient for there to be an abuse of process. That is a live issue here. At paragraph 26, at line 30 on page 179 of the application book, we refer to authorities which support that proposition. As your Honours will recall that is the position in relation to res judicata and issue estoppel that a consent judgment is sufficient.

Now, Justice McColl, although she did not deal with this during.....did touch upon it at page 149 of the application book at about line 20, where she refers to three cases there in that paragraph 199 where it is said, or it seems to be suggested that in order for there to be an abuse of process the matter must be “fully litigated” or “properly argued”. That would seem to cut across those cases which I took your Honours to a moment ago and can I say three things there?

The first is, and I will come to them in a moment, those cases referred to do not support that proposition. Second of all, Justice McColl does not deal with the contrary authorities, which I took your Honours to a moment ago and thirdly, these cases, if there is a conflict of authority on this point, suggest picking up what your Honour the Chief Justice put to me that there is some uncertainty about an aspect of these principles, which would warrant the consideration of this Court.

FRENCH CJ: There was some dispute about whether Reichel was really a res judicata or an abuse of process matter. I think Justice Handley makes some reference to that in his text.

MR REYNOLDS: He does. He starts off - - -

FRENCH CJ: But I do not think anything turns on it here.

MR REYNOLDS: Quite so and just while I am on that, this is on the verge of these Reichel v McGrath principles. Although this Court has referred, for example in Rogers v The Queen and in Walton v Gardiner to those principles there is not, so far as I can recall, a decision of this Court that deals with what I might call the Reichel v Magrath aspect of abuse of process. On one view I - - -

FRENCH CJ: I think there was some mention of it in AON Risk.

MR REYNOLDS: There was and in PNJ v The Queen, I think. It has certainly been touched on, but this particular aspect of abuse of process, as opposed to Henderson v Henderson and the Anshun principles is not something that I can recall this Court having dealt with. These principles are on the margin of that.

The second possible qualification on these principles I would like to raise is the question as to whether this principle mentioned by Justice Handley should be qualified or watered down by what might be called a balancing of factors test. Now, that approach has not been taken in the defamation cases, so far as I can recall, but it has been taken in the Reichel v Magrath context.

For example, if your Honours go to page 47 of the application book there is a statement of factors there by Justice Giles, the Stenhouse Case at the top of page 47, and that is how his Honour dealt with the Reichel principles in a non-defamation case. If your Honours go to paragraph (b) your Honours will see that, despite what Justice McColl said, that paragraph does not exclude an abuse of process if the judgment in the first action did not deal with the issue on the merits. Likewise Justice Hunt has also dealt with a statement of factors in a decision referred to at page 116 of the application book, namely Haines v ABC which did not involve two successive defamation actions. Your Honours will see at about line 30 - - -

FRENCH CJ: Sorry what page is that?

MR REYNOLDS: Page 116, about line 30 his Honour refers to Reichel v Magrath – as I say, this was not a double defamation case – and then refers to a series of factors:

lost in the former . . . necessarily determined . . . properly argued . . . final –

Not overlooking a “binding authority” and no “manifest injustice”. So that is the approach she takes. But importantly, if you go about halfway down to the statement “properly argued” that is defined to mean that:

the tribunal which decided it was an appropriate one to do so, that the parties were appropriate contradictors and the issue was regarded by them as one of importance -

Now that, again, despite what Justice McColl says, does not exclude an abuse of process where the judgment in the first action was by consent. So that is a second issue of some importance which we raise in relation to the statement of principle by Justice Handley.

The third one I will deal with very briefly. That is a matter adverted to at page 174 of the application book, at about lines 30 to 40. Your Honour the Chief Justice mentioned the AON Case. One of the issues which has arisen in the United Kingdom in the decision in Schellenberg referred to at line 40 on that page is whether, just as your Honours in dealing with amendment applications in the AON Case, factored in these principles of avoidance of protracted litigation, speedy resolution of cases and what have you on the question of amendment in AON. So too, in Schellenberg Justice Eady, who is the principal judge who deals with libel actions in London, he factored those matters into the abuse of process equation and adopted what, I submit, was a more pro-defendant approach to the issue of abuse of process in the light of those principles.

So I submit that just as your Honours reviewed the principles on amendment in the light of these objects of the Civil Procedure Act – and, of course, here they are duplicated in the Defamation Act – that in this particular area, particularly in defamation, your Honours would formulate a principle that effectively says absent very special circumstances if there are identical publications which have been published and which are extant then what a plaintiff needs to do is commence proceedings against all the defendants in the one action and have the whole thing wrapped up in that action, instead of suing just one defendant and then when you do not have a good result suing other defendants.

Now, of course, usually or very often these matters will be covered by res judicata. But also very often they will not be because the relevant defendant will not be a privy of the defendant in the first proceedings. So that is the third matter I would like to raise and I submit that all of those issues – both Justice Handley’s statement of principle and these three possible qualifications – are all matters of importance which this Court ought look at.

Those issues were not resolved in this decision of the Court of Appeal and the reason is that the essential premise of the Court of Appeal’s reasoning is that there could be no abuse of process here because of what might be called a factual matter. The factual matter is because the broadcasts in the first action were not relied upon by the plaintiff on the issue of liability, but rather only on damages.

Now, that leads me to my interest of justice point and may I put this again with the very greatest of respect. At pages 180 to 182 of this application book we have set out - and we have numbered them - 16 reasons why, again with respect, there is no conceivable basis, no basis for that determination by the Court of Appeal. That is what the primary judge held and there has not really, I submit, been any response of substance by my learned friend to any of those 16 points.

HEYDON J: Mr Reynolds, can I raise a point, which I do not think the respondent has raised? In the Court of Appeal the court pointed out it was necessary for Mr Evatt to get leave to appeal because it was an interlocutory appeal, right?

MR REYNOLDS: I think that is right yes, your Honour.

HEYDON J: It was granted. Now, we are talking about an appeal to this Court in relation to interlocutory orders. If you fail today and do not enjoy success at the trial will you not be entitled to seek special leave to appeal in relation to anything that went wrong, either before the trial or at the trial or at an appeal from the trial, which is causative of the adverse orders and a prime candidate would be the arguments you are now advancing in relation to those 16 factors?

MR REYNOLDS: Very possibly we would, but in the meantime my client would be put to the enormous expense and inconvenience of having to run, in full, a defamation trial in the District Court and where that may, in effect, turn out to be a complete waste of time, money and energy and I submit that that is a matter which your Honours should take very much into account. Also, there is no reason in what your Honour has just put to me which affects the question of whether or not this Court can properly and appropriately and completely deal with the issues that I have articulated. So it is not a situation where because it was originally interlocutory there is some problem about uncertain facts or that sort of thing.

So I submit that the difficulty is that then there would be no utility if I am right on these arguments about abuse of process. With respect, we submit that it is a very strong case, a very strong argument for abuse of process. Part of the way these principles work is to avoid a defendant, like my clients, having to go through all of this difficulty, inconvenience and expense, the expense for which will never be completely recouped, when the proceedings are an abuse.

Now, these things will always tend to come to this Court at an interlocutory level. When there have been abuse of process arguments in the past they have, on a number of occasions, come to the Court prior to there being a full trial. So I respectfully submit that although the matter your Honour raises with me very appropriately a matter that might be considered, I submit that it is not a reason why special leave should not be granted. Your Honours, can I finish just by mentioning one matter and that is - - -

FRENCH CJ: I am sorry, just before you do, at this level there is a dispute, is there not, about the characterisation of the proceedings in the District Court as to whether or not the radio broadcasts were republications going to damages or whether, in effect, it was being asserted as a head of liability?

MR REYNOLDS: Well, your Honour, with all due respect to my friends we submit there is no bona fide dispute about that and I mean that in terms. We submit there is no real argument that can be mounted and there has not been in my learned friend’s submissions to support that. I am sorry to put it so bluntly. I do apologise for that, but we say that - - -

FRENCH CJ: All I want to do is hear your submissions.

MR REYNOLDS: I understand that, your Honour, but your Honour is raising with me a possible factual matter and I, on one view, have to put my submission high and I do. We submit this is, as I have said, quite baffling that the Court of Appeal has come to this decision and my learned friend, as we say, has had ample opportunity in his submissions to cut down these 16 reasons and he has not done that. So we submit there is not any real dispute about that at all.

What this case is fundamentally about and can I close on this point, is that my learned friend – and this is referred to in the application book at page 39 at about line 30 – the reason he did not join everyone, all defendants in the one proceedings, was as he admitted to Judge Gibson, as he admitted in oral submissions at line 31, that he was simply:

seeking the tactical advantage of only having one opponent (instead of three) in the s 7A jury trial.

That is what this is all about. I submit, not to have included all the defendants in that initial action just for a tactical advantage is an abuse of the processes of the court. If your Honours please, those - - -

FRENCH CJ: Just another question, I am sorry, Mr Reynolds. The application in S208 seeks special leave to appeal against the decision

allowing the appeal. You also have an application, S209, which relates to the decision granting leave to appeal. That is - - -

MR REYNOLDS: I have never been able to follow that, your Honour. Why I say that is because the reason there are two matters is at the insistence of the Court’s Registry and we have complied with that insistence, but I - - -

FRENCH CJ: But you do not put any argument on 209?

MR REYNOLDS: I do not understand why there are two proceedings, if I can answer your Honour the Chief Justice in that way.

FRENCH CJ: Yes all right, thank you. Yes, Mr Evatt.

MR EVATT: It is not so much a dispute as to law. The dispute is really as to the facts. Even in his submissions this morning my friend keeps on referring to identical publications. Perhaps if I took your Honours to page 195 - - -

FRENCH CJ: So there is a bit of embellishment in the broadcasts, is there?

MR EVATT: There certainly was. Could I take your Honours to page 195? These are my friend’s submissions in reply and he says at paragraph 1:

This case concerns the following situation:

• P brings an action against D1 for defamation in the Supreme Court in respect of four publications.
  

That is not correct. What we brought was an action in the Supreme Court in respect of a publication in The Daily Telegraph conveying two imputations and in respect of three republications of those imputations in three radio broadcasts and my friend agreed that they were republications. If I take you to application book 40 at around about line 20. When the case started before Mr Justice Kirby – that is a 7A jury trial – to determine whether the imputations were conveyed and were defamatory, his Honour’s associate inquired whether we would need a cassette player to play the broadcasts. In the transcript I am quoted as saying:

the three broadcasts are –

That should be “republications” –

so the issue for the jury is only the Daily Telegraph article.

My friend replies, “I agree” that they were republications and that was repeated at - - -

MR REYNOLDS: There was no issue about that.

MR EVATT: Well, my friend says there is no issue about it.

MR REYNOLDS: The question is whether - - -

FRENCH CJ: Mr Reynolds, we will hear from you in reply. We cannot listen to two voices at once.

MR EVATT: Justice McColl refers to that at page 85, line 30 that my friend agreed that these were republications. So getting back to page 195 the first proposition is incorrect. Then the second point he says:

• P obtains judgment against D1 in respect of all four publications.
  

Not correct. The judgment is at 41. Perhaps a better one is page 86. At page 86 it is set out more fully. That is in the judgment of Justice McColl at page 86, line 30:

TERMS OF JUDGMENT/ORDER

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

I think “pleaded” was crossed out, but I do not think it makes any difference –

2 Judgment –

I think “Costs” was crossed out –

Judgment for the defendant in the action, with costs”.

That is not a judgment against the first defendant in respect of all four publications. It is a judgment against the defendant for the two imputations conveyed by the Daily Telegraph article where, following the jury’s decision that neither of the two imputations was conveyed, they did not consider the defamatory question. The third and last point that my friend raises:

• In the meantime, P sues D2 –
  

That is the applicant here –

(a joint publisher with D1) –

We were not joint publishers with the first defendant at all. They were separate publications on the radio. But he says -

for defamation in the District Court in respect of three of the same publications.

But there was no joint publication. We are entitled to take the course we did. It is referred to in – apart from any authorities – section 48 of the Act, referred to by Justice McColl at page 122 at about line 30. She says, about three lines down from that paragraph:

Section 48 clearly contemplated that a plaintiff might bring more than one defamation action against different defendants in respect of “other publication[s] of matter to the same purport or effect as the matter complained of in the proceedings” –

That is the precise wording of section 48 of the Defamation Act. So, apart from any principles of law, we are entitled as of right contemplated by the Defamation Act to bring proceedings to recover damages:

in respect of “other publication[s] of matter to the same purport or effect as the matter complained of –

in this case in the first proceedings. However, it does mitigate damages. Even on my friend’s submissions, ignoring what we say is his misinterpretation of the facts, it is hardly a case where leave should be granted at this stage. It is five years since the broadcasts and we have not even had a 7A jury trial yet. The statement of claim at page 23 of the application book – or perhaps if we go to page 21 - - -

FRENCH CJ: This is a statement of claim in proceedings against Nationwide News?

MR EVATT: This is a statement of claim – I beg your Honours’ pardon – in the Supreme Court against Nationwide News. Paragraph 2 we allege that the defendant published the article in The Daily Telegraph. In paragraphs 4, 6 and 8 we allege that the defendant caused to be published in the radio programs, and the particulars we give on page 23 are the particulars given for republication cases - that is at 23, line 20. We allege that:

The article in “The Daily Telegraph” referred to in paragraph 2 was of a sensational nature making allegations as it did against the Plaintiff who at that time was in receipt of widespread media publicity. The Defendant knew that the article would be likely to be read by radio commentators later on the day of the publication. The article was indeed read . . .

For the reasons above the Plaintiff says that the Defendant caused the publications –

My friend keeps on saying in his submissions that when we say “published” or “caused to be published” we are just referring to the one publication. With the greatest respect, my friend does not take into account what appear to be the facts. Of course, his complaint we did not answer his 16 commands or whatever he calls them is not to the point, your Honour. Most of them are all irrelevant to what we say are the issues, which were determined by the Court of Appeal.

Having said all that issues of publication and republication do come before the courts from time to time. Unfortunately, or fortunately, whatever it is, following a case of Griffith v ABC, from which there was no appeal, Mr Justice Levine said that issues of republication in a 7A trial were for the judge and not for the jury. Today under the new Act all issues of publication and republication are for the jury. So hopefully this sort of thing would not arise again.

My friend is critical of the Court of Appeal for saying that the republications only went to the issue of damages. That is true with the proviso recognised by Justice McColl at page 125 of the application book. At line 20 she says correctly:

an original publisher of defamatory matter may be liable for its republication where the republication was the natural and probable result of the original publication -

She comes to that at the very last two lines on the page referring to:

the republication of that matter by a third party was the foreseeable consequence of its original publication –

If that is a liability question, narrow as it is, it does have to be determined in a 7A trial by the trial judge. It would not be for the jury because it is part of the republication, which is for the judge and not the jury. So, although republication goes to damages it is only on the basis that the republication,

or republications here, were a natural and probable consequence of the initial publication. There could not be much doubt here because each of the radio broadcasters not only referred to The Daily Telegraph article, but read out the relevant passages from it in their broadcasts.

I am not sure at the end of the day what it is this Court is being asked to decide. One problem is this that if leave is granted the first thing the High Court will have to work out is what are the facts and whether they are identical publications, as my friend keeps on saying, or one original publication and republications. Everything else is in my submissions, your Honours, and I think they are the points I wish to make.

FRENCH CJ: Thank you, Mr Evatt. Yes, Mr Reynolds.

MR REYNOLDS: Your Honours, my learned friend has said there are disputes about the facts. We submit that my learned friend is not even raising arguable disputes about the facts. Can I take the point my learned friend started and finished with? That is the suggestion that the publications in the Supreme Court and in the District Court are not identical publications. The broadcasts sued and relied upon in both are completely identical. My learned friend even used the same annexures to his pleading. In my submission, that is simply not bona fide in dispute. Now, I will try and deal with all of these alleged factual matters.

Secondly, your Honours were taken to this so-called agreement referred to at the application book at page 40, line 20 and to me agreeing that there were issues of republication. Well, of course, that is what the agreement was. That is no agreement that the republication is as to damages. For the other 16 reasons we have mentioned it is clear that my learned friend elected to run a case on republication based on liability.

My learned friend also took your Honours to page 195 and said that the first proposition there at line 11 was wrong. Well, that all depends upon this key proposition as to whether or not the claim in the first action in relation to broadcast was on liability. If it was then that proposition is correct. Likewise, in the second bullet point there I should really have said judgment is entered in favour of the defendant in respect of all four publications. That would have been a better way of putting it. But subject to that caveat, which has nothing to do with my friend’s argument, again if the republication case in the first proceedings went to liability, then it follows that these orders, which my friend took your Honours to at page 86, those orders will cover all of the pleaded imputations – this is page 86, line 40 – in the matter which include, of course, the pleaded imputations not only in relation to the Telegraph article, but also in relation to all the broadcasts.

My learned friend next goes – this is at page 195 at about line 15 – he disputes our use of the term “joint publisher”. Now, we have not used that as a term of art, we mean there are two publishers of the same article. But in any event, your Honours will have seen from Justice Handley’s statement of principle, which I took your Honours to in the application book at the bottom of page 178 and the statement from Gatley at about line 10 on the following page, these do not include the proposition that the publishers may be joint. If that is an issue, your Honours, then that raises a further issue in relation to these principles of the abuse of process, namely whether or not they only apply where the two publishers are joint tortfeasors.

Next, my learned friend mentions section 48. We deal with this in our reply at page 196 at about line 48. Your Honours, section 9(6) of the Act, as we say at the conclusion of that paragraph 13, “preserves the right to argue abuse of process” in appropriate cases. All section 48 is in there for is to prevent double recovery in a situation like the following. A plaintiff brings an action, recovers damages. Then somebody later says – repeats the same libel, in which case the plaintiff afterwards can sue that other publisher for damages and recover. But again, there cannot be double recovery and an account has to be taken of the damages he has already recovered.

The other thing about section 48, if your Honours go to the third line of paragraph 11, is it applies to publications of the same purport or effect. Now, of course, the publications here are identical, but section 48 covers a situation which would not arguably be covered by abuse of process, namely where the publications are similar, but not identical.

Next, my learned friend refers to the expression “caused to be published” and suggested that is a matter going to damages. With all due respect to my friend there is a decision of this Court that is referred to frequently that says just the opposite. Behind tab 1 of our file of authorities is the decision of this Court in Webb v Bloch and these words “caused to be published”, if your Honours go to page 364 at about point 2 – this is the locus classicus on the definition of “publication” – about line 6, “published and caused to be published”. At about point 7 on the page again the same phraseology is used. This is to anyone pleading a defamation case a direct statement that the pleader is relying on the publication on liability, not on damages.

FRENCH CJ: I think your time is up, Mr Reynolds.

MR REYNOLDS: If your Honours please.

FRENCH CJ: The Court will adjourn briefly to consider what course it will take in this matter.

AT 10.40 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.44 AM:

FRENCH CJ: The substantive application in S208 of 2009 seeks special leave to appeal against the decision of the New South Wales Court of Appeal which allowed an appeal against a judgment of the District Court of New South Wales striking out defamation proceedings brought by the respondent in that court against the applicants as an abuse of process. The respondent had sued Nationwide News Pty Limited in the Supreme Court alleging defamation arising out of its publication of an article in The Daily Telegraph on 18 August 2005 and for having caused to be published defamatory words broadcast by the applicants on three radio programs and based in part upon The Daily Telegraph article. The applicants were not parties to the Supreme Court action.

A jury found imputations said to arise from The Daily Telegraph article were not made out. The Supreme Court proceedings were dismissed by consent. The District Court held that the publications in the radio broadcast had not been considered by the jury in the Supreme Court proceedings because they were treated by agreement as re-publications relevant to damages rather than liability. The primary judge held that the way the respondent conducted the case in the Supreme Court gave rise to an Anshun estoppel in favour of the applicants and that, in any event, the proceedings against the applicants amounted to an abuse of process by virtue of section 9(6) of the Defamation Act 1974 (NSW).

The Court of Appeal granted leave to appeal against the primary judge’s interlocutory order. It held that the primary judge erred in concluding that the Supreme Court proceedings involved a determination on the merits of the question whether the original imputations were carried by the radio broadcasts. That involved an error about the nature of the Supreme Court proceedings.

The application relates to an interlocutory decision in pending proceedings in the District Court. It turns, in part, upon disputed characterisations of the proceedings in that court and in the Supreme Court of New South Wales. In our opinion, it does not warrant the grant of special leave.

The application in S209 of 2009 relates to the decision to grant the respondent leave to appeal out of time against the interlocutory decision of the District Court. Special leave should be refused in respect of each application with costs.

The Court will now adjourn briefly to reconstitute.

AT 10.46 AM THE MATTERS WERE CONCLUDED