Edward Cecil Thompson v Australian Capital Television Pty Limited; Publishing & Broadcasting Limited and Tcn Channel Nine Pty Limited [1989] ACTSC 45 (1 September 1989)

SUPREME COURT OF THE ACT

EDWARD CECIL THOMPSON v. AUSTRALIAN CAPITAL TELEVISION PTY LIMITED; PUBLISHING
& BROADCASTING LIMITED and TCN CHANNEL NINE PTY LIMITED
S.C. No. 1286 of 1985
Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Procedure - pleadings - defamation action - point of law determination prior to hearing of action - Rules of the Supreme Court of the Australian Capital Territory, Order 29

XL Petroleum (NSW) Pty. Limited v. Caltex Oil (Australia) Pty. Limited [1985] HCA 12; (1984-1985) 155 CLR 448 at p 456

London Chatham & Dover Railway Co. v. South Eastern Railway Co. (1885) 53 LT 109

New South Wales Food Processes Ltd. v. Gorton (1915) 32 WN (NSW) 132

Noall v. Middleton (1961) VR 285 at 286

Wilkinson v. Mulcahy (1888) 9 ALT 135

HEARING

CANBERRA
1:9:1989

Counsel for the Applicant/Defendant: Mr R Williams

Solicitors for the Applicant/Defendant: Sly & Weigall

Counsel for Respondent/Plaintiff: Mr Rofe QC and Mr Marshall

Solicitors for Respondent/Plaintiff: Murphy and Moon

Counsel for 3rd Parties/Cross Defendants: Mr Campbell QC and Mr McClintock

Solicitors for 3rd Parties/Cross Defendants: Allan and Helmsley

ORDER

The schedule expressed to be attached to the statement of claim, be attached to the statement of claim by the plaintiff within 48 hours.

The defendant's notice of motion dated 2 August 1989 be dismissed.

The defendant pay the plaintiff's costs of that motion.

The third parties pay their own costs in respect of that motion, if any.

The third parties' notice of motion dated 13 April 1989 be dismissed.

The third parties pay the defendant's costs and the plaintiff's costs, if any, of that motion.

DECISION

These are two motions heard together by consent, one taken out by the defendant against the plaintiff on 2 August 1989 and the other taken out by the third parties against the defendant on 13 April 1989. In each case the moving party seeks to have what is described as a point of law set down for hearing and disposed of before trial, pursuant to Order 29 Rule 2. In each case the point of law is similar to the other, but not, in my view, identical.

2. No affidavit was relied upon to support either notice of motion. The parties were content to refer to the pleadings as they stand.

3. I commence by saying something about the application made by the defendant against the plaintiff. In his amended statement of claim annexed to the writ issued on 15 November 1985 (sic) the plaintiff commences with allegations that the defendant was at all material times an incorporated company and the operator of a television channel, Channel 7, with a viewing audience in the ACT and New South Wales. Curiously, those allegations are denied by the defendant in its amended defence filed 6 October 1988 (sic). I say curiously because the argument presented on behalf of the defendant in its application proceeded as if those allegations were true.

4. Paragraph 3 of the amended statement of claim alleges that on Tuesday, 21 February 1984 the defendant published by way of television broadcast to a large viewing audience in the ACT and New South Wales certain matter of and concerning the plaintiff. According to the amended statement of claim filed in the Registry a transcript of what was said is set forth in the schedule to the statement of claim. There is, however, in the document filed in the Registry no schedule at all. This oversight, as it presumably is, should be attended to forthwith.

5. Paragraph 4 of the amended statement of claim sets out the imputations relied on. Paragraph 5 alleges that those imputations are defamatory of the plaintiff.

6. In its amended defence dated 6 October 1988, the defendant in paragraph 2 denies generally the allegations in paragraphs 3, 4 and 5 of the amended statement of claim. Further, in paragraphs 3 and 4 the defendant expressly puts in issue the defamatory character of the matter complained of and the identification of the plaintiff, and in paragraphs 5 and 6 raises qualified privilege. Paragraph 7 of the amended defence is in the following terms:
"7. Alternatively the defendant says that insofar

as it may be found that the matter complained
of was published of and concerning the
Plaintiff (which is not admitted) and to be
defamatory of him (which is denied):
(a) the Secondnamed Third Party is and was
at all material times operating the
television broadcasting station known as
TCN Channel 9;
(b) the Firstnamed Third Party is and was at
all material times an agent or a related
company of the Secondnamed Third Party;
(c) by Licence Agreement No 7857/L339 made
between the Defendant and the Firstnamed
Third Party on behalf of itself or
on behalf of the Secondnamed Third
Party, the Third Parties licensed for
reward the Defendant to broadcast on its
television broadcasting station the
programme entitled "The Today Show" for
the period from 26 December 1983 to 21
December 1984;
(d) Pursuant to the said Licence Agreement
the Third Parties relayed to the
Defendant by direct link the matter
complained of and thereby intended and
authorised the Defendant to broadcast
the matter complained of over its television
broadcasting station known as Capital 7;
(e) On 21 February 1984 the Defendant broadcast
the matter complained of over its
television broadcasting station known as
Capital 7;
(f) By reason of the matters referred to in
paragraphs (a) to (e) inclusive hereof
the Third Parties thereby became liable
as joint tortfeasors in relation to the
publication of the matter complained of
by the Defendant over its television
broadcasting station known as Capital 7;
(g) On 21 February 1984 the Secondnamed
Third Party broadcast the matter
complained of over its television broadcasting
station known as TCN Channel 9;
(h) The plaintiff commenced action No.11170
of 1984 in the Supreme Court of New
South Wales against the Secondnamed
Third Party claiming damages for
defamation arising out of the publication
by the Secondnamed Third Party of
the matter complained of over the television
broadcasting station known as TCN Channel 9;
(i) By Deed of Release dated 23 August 1985
made between the Plaintiff and the
Secondnamed Third Party, the Plaintiff,
in consideration of the Secondnamed
Third Party paying to the Plaintiff the
sum of $50,000.00:
"1. Forever releases and discharges the
Releasee (the Secondnamed Third
Party) and its servants agents and
related companies their servants and
agents from all actions suits causes
of action claims and demands
whatsoever which the Releasor (the
Plaintiff) now has or any time
hereafter may have or but for the
execution of this Deed could would
or might have had against the
Releasee or any of its servants
agents or related companies their
servants and agents arising out of
or in respect of the publication of
the said matter the subject of the
said action.
2. Forever releases and discharges the
Releasee and its servants and agents
and related companies their servants
and agents from all actions suits
causes of action claims and demands
whatsoever which the Releasor now
has or at any time hereafter may
have or but for the execution of
this Deed could would or might have
had against the Releasee or any of
its servants agents or related
companies arising out of any other
publication of the matter complained
of by or on behalf of the Releasee
its servants and agents up to and
including the date of this Deed
relating in any way to the Releasor.
3. Forever releases and discharges the
Releasee and its servants and agents
from related companies from all
actions suits causes of action
claims and demands whatsoever which
the Releasor now has or at any time
hereafter may have or but for the
execution of this Deed could would
or might have had against the
Releasee or any of its servants
agents or related companies arising
out of or in respect of the
publication or broadcast of any part
of the matter complained of over
television station TCN 9 Sydney or
over any other radio or television
station or by any other means whatsoever
or in respect of or arising
out of any other publication whatsoever
by or on behalf of the
Releasee its related companies
servants and agents up to and
including the date of this Deed
relating in any way to the Releasor."
(j) Pursuant to the provisions of the Deed
of Release the Secondnamed Third Party
paid the Plaintiff the sum of
$50,000.00.
(k) By reason of the provisions of the Deed
of Release the Defendant as joint tortfeasor
has been released of any action
suit cause of action or claim the
Plaintiff may have had against the
Defendant in relation to the publication
by the Defendant on 21 February 1984 of
the matter complained of over its television
broadcasting station known as Capital 7."

7. Put simply, paragraph 7 of the defence alleges that if the defendant is responsible for the publication, and if the publication is defamatory of the plaintiff (all of which is denied), then the defendant cannot be held liable to the plaintff in damages, the reason being that the publication was made jointly with the third parties, and that the third parties have obtained from the plaintiff a release in respect of their liability to the plaintiff for that publication. According to well established common law principles, the release by a plaintiff of a joint tortfeasor operates as a release in favour of all persons who participate jointly in the tort and who would, otherwise than for the release, be liable to the plaintiff: see XL Petroleum (NSW) Pty. Limited v. Caltex Oil (Australia) Pty. Limited [1985] HCA 12; (1984-1985) 155 CLR 448 at p 456.

8. No reply to the amended defence has been filed. The pleadings are therefore deemed to be closed and the material statements of fact in the pleading last delivered (that is, the amended defence) are deemed to have been denied and put in issue: Order 27 Rule 3(1). The effect is that the plaintiff is deemed to deny all the allegations of fact that the defendant makes in the amended defence and upon which the defendant relied to constitute the defence of release of joint tortfeasor. Hence, all the matters raised by the defendant in paragraph 7 of the defence are deemed to be denied.

9. The defendant seeks to have a point of law decided before the trial. The power of the Court to make an order to this effect, if not inherent, is set out in Order 29, which reads in part as follows:
"PROCEEDINGS IN LIEU OF DEMURRER 1. A demurrer shall not be allowed. 2. Any party may raise by his pleading any point

of law, and any point so raised shall be
disposed of by the Judge at or after the
trial, but by consent of the parties, or by
order of the Court or Judge, on the
application of either party, the same may be
set down for hearing and disposed of at any
time before the trial.
3. If, in the opinion of the Court or Judge, the
decision of such point of law substantially
disposes of the whole action, or of any
distinct cause of action, ground of defence,
set-off, counter-claim, or reply therein, the
Court or Judge may thereupon dismiss the
action or make such other order therein as is just.
....."

10. The point of law which the defendant has sought to identify and to have heard and disposed of before trial is put in these terms in the notice of motion of 2 August 1989:

"Whether the Defence pleaded in paragraphs 2 and
17 of the Amended Defence are available (if proved
in fact) against the Plaintiff namely:
(a) that the Defendant did not publish the matter
complained of in paragraph 3 of the Statement
of Claim;
(b) that if the matter complained of in paragraph
3 of the Statement of Claim was defamatory of
the Plaintiff in its natural and ordinary
meaning and by reason of the facts matters
and circumstances therein set out, (which is
denied), that the Third Parties were jointly
liable with the Defendant for any damage
caused by the publication of the alleged
defamatory material and the Third Parties
have been released of any claim which the
Plaintiff may have had against them, in consequence
whereof the Plaintiff is not
entitled to claim damages against the
Defendant for the publication by the
Defendant of the matter set out in paragraph
3 of the Statement of Claim; and
(c) or in the alternative whether by reason of
the commencement and settlement of proceedings
in New South Wales in the Defamation
List of the Supreme Court No. 11170 of 1984
the Plaintiff is estopped from bringing these
proceedings on the basis of the principles
stated in Port of Melbourne Authority v.
Anshun Pty Limited 143 CLR 589."

11. It is clear law that the power to decide, before the hearing of an action, a point of law raised in a pleading is to be exercised only for good reason and will depend on whether that course is convenient and will save expense: London Chatham & Dover Railway Co. v. South Eastern Railway Co. (1885) 53 LT 109; New South Wales Food Processes Ltd. v. Gorton (1915) 32 WN (NSW) 132.

12. It will be rare indeed, where there is a disputed area of fact which bears on the point of law, for the point of law to be disposed of prior to the determination of the facts: Noall v. Middleton (1961) VR 285 at 286; Wilkinson v. Mulcahy (1888) 9 ALT 135.

13. In my view, each of the matters raised in paragraphs (a), (b) and (c) referred to above relate to separate issues of mixed fact and law. Until the issues of fact are decided it is inappropriate to seek to determine any question of law.

14. Further, it should be observed that the defendant's notice of motion is ambiguous. The "point of law" it seeks to have decided is whether "the Defence pleaded in paragraphs 2 and 7 of the Amended Defence are (sic) available (if proved in fact)". I take this to be a claim by the defendant, not that the defence (or defences, whichever is meant) is or are "available" in the sense of capable of being argued, but that a claim for the defendant must, as a matter of law, succeed on that defence or those defences. If that is so, the defendant's motion must fail because clearly as the pleadings stand the defendant is not entitled as a matter of law to succeed on any of the defences pleaded. If on the other hand the defendant is seeking in the notice of motion to have a determination that the defence or defences are available in the sense of capable of being argued, that is, in my view, an academic question only until the facts are decided. Finally, the notice of motion raises the question of estoppel, yet estoppel is not pleaded in the amended defence. If the defendant wishes to raise estoppel as a defence, that ought to be specifically pleaded in a further amended defence.

15. Hence the defendant's claim to have the so-called point of law decided prior to trial is quite untenable.

16. I turn now to the claim by the third parties against the defendant. The allegations in the amended third party claim filed 20 December 1988 may be shortly stated. In paragraph 4 the defendant alleges a licence agreement between it and the third parties whereby the defendant was authorised to broadcast the television programme in question. The defendant further alleges in paragraph 6 that pursuant to that licence agreement "the Third Parties relayed to the Defendant by direct link the 21 February 1984 edition of the said programme and thereby intended and authorised the Defendant to broadcast the said programme over its television broadcasting station known as Capital 7". After further alleging breach of a contractual obligation in relation to defamatory material contained in the broadcast and further alleging negligence in relation to that defamatory material, the defendant goes on to allege in paragraph 12 that by reason of those matters "the third parties thereby became liable as joint tortfeasors in relation to the publication by the defendant of the said programme".

17. In their defence to the amended third party claim dated 13 April 1989, the third parties expressly admit the allegations in paragraph 4 of the amended third party claim. They admit relaying the programme to the defendant as alleged in paragraph 6 but deny authorising and intending the defendant to broadcast it. They do not plead to paragraph 12. Insofar as paragraph 12 raises questions of fact, those allegations are by virtue of Order 23 Rule 13 taken to be admitted. Mr. Campbell QC, who appeared on behalf of the third parties, indeed asserted that the implied admission on the pleadings by the third parties that they were joint tortfeasors with the defendant was part of his case to have the so-called point of law decided before trial. I agree that on the pleadings there can be no dispute in the third party proceedings that the defendant and the third parties are joint tortfeasors in respect of the publication of the defamatory material upon which the plaintiff relies in his action against the defendant.

18. Contrast the position in the action brought by the plaintiff against the defendant in which the liability of the defendant to the plaintiff is denied by the defendant, in which the assertion by the defendant that it has been released from its liability to the plaintiff (if any) is impliedly denied by the plaintiff and in which the question of whether such liability is joint or otherwise simply cannot be determined until after the facts have been found at trial.

19. Mr. Campbell QC submitted that the defendant's third party claim as pleaded should be approached as on a demurrer, that is to say, that on its face it discloses no cause of action, or more accurately, no ground upon which contribution or indemnity could be successfully claimed. However, in my view such an approach cannot result in a decision favourable to the third parties. The allegation by the defendant that the third parties "became liable as joint tortfeasors in relation to the publication by the defendant of the said programme" does not and cannot of itself defeat the claim for contribution or indemnity. Without more, it does not mean that the joint tortfeasors are not liable to the plaintiff and not liable amongst themselves for contribution or indemnity. What the third parties seek to rely upon is the release by the plaintiff of their co- tortfeasor, the defendant. In order to establish that release as a matter of fact, the third parties must make further allegations which if not admitted must be proved. Those allegations are made in paragraphs 9 and 10 of the defence to the amended third party claim. Those paragraphs are in the following terms:

"9. In further answer to the Amended Third Party
Claim the Third Parties say that if the
matter complained of in paragraph 3 of the
Statement of Claim was defamatory of the
Plaintiff in its natural and ordinary meaning
and by reason of the facts matters and
circumstances therein set out (which is
denied), the Third Parties were jointly
liable with the Defendant for any damage
caused by the publication of the alleged
defamatory material and the Third Parties
have been released of any claim which the
Plaintiff may have had against them or either
of them, in consequence whereof the Plaintiff
is not entitled to claim damages against the
Defendant for the publication by the
Defendant of the matter set out in paragraph
3 of the Statement of Claim.
PARTICULARS
(a) Licence Agreement No. 7857/L339 between
the Defendant and the firstnamed Third
Party.
(b) The program of 21 February 1984 was
broadcast and televised pursuant to that
licence agreement.
(c) Deed of Release dated 23 August 1986
between the Plaintiff and the secondnamed
Third Party.
(d) The firstnamed Third Party is an agent
or a related company of the secondnamed
Third Party.
10. In further answer to the Amended Third Party
Claim the Third Parties say that on 13 April
1984 the Plaintiff commenced proceedings in
the New South Wales Supreme Court (the "New
South Wales Proceedings") seeking damages in
respect of the publication of the same matter
relied upon in these proceedings. By reason
of the bringing of the New South Wales proceedings
the Plaintiff is estopped from
bringing these proceedings on the basis of
the principals stated in Port of Melbourne
Authority v. Anshun Pty Ltd. 143 CLR 589.

20. No reply to the defence to the amended third party claim has been filed and, therefore, according to Order 27 Rule 3(1) every material statement of fact in paragraphs 9 and 10 is deemed to be denied. Hence, until there is a determination in favour of the third parties of the issues raised in paragraphs 9 and 10, the third parties are not entitled to succeed on the issue of release of joint tortfeasor.

21. Furthermore, it must be borne in mind that what the third parties seek in their notice of motion is not a determination which will have the effect of judgment being given in their favour, but an order that a "point of law be set down for hearing and disposed of before trial". The "point of law" in question is "whether the defence as pleaded in paragraphs 8, 9 and 10 of the defence to amended third party claim are available (if proved in fact) against the defendant." As I have indicated, I take the word "available" to read in the sense of "bound to succeed". Those defences are identified as going to (a) publication, (b) release of joint tortfeasors, and (c) estoppel. In my view, none of the issues is capable of determination as a point of law without findings as to fact.

22. I shall give further directions as to the further conduct of the matter once the parties have had a chance to peruse these reasons.

23. I dismiss the defendant's notice of motion dated 2 August 1989. The defendant is to pay the plaintiff's costs of that motion. The third parties are to pay their own costs in respect of that motion, if any.

24. I dismiss the third parties' notice of motion dated 13 April 1989. The third parties are to pay the defendant's costs of that motion, and the plaintiff's costs, if any, of that motion.