Anthony John Earl Grey v David Syme and Co Limited [1992] ACTSC 22; (1992) 106 FLR 103 (6 March 1992)

SUPREME COURT OF THE ACT

ANTHONY JOHN EARL GREY v. DAVID SYME and CO. LIMITED
S.C. No. 398 of 1991
Defamation - Private international law
[1992] ACTSC 22; (1992) 106 FLR 103

COURT

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

CATCHWORDS

Defamation - endorsement on writ - whether sufficient to give notice of nature of claim.

Defamation - pleading - statement of claim - allegation publication of defamatory material in the ACT and interstate - methods of pleading - damages - whether recoverable for entire issue - availability in the ACT of defences available in interstate jurisdictions.

Private international law - service out of jurisdiction - leave to proceed - whether act for which damages are sought to be recovered done in the Australian Capital Territory.

Service and Execution of Process Act 1901 ss. 5(1)-(3), 11(1)

Victorian Broadcasting Network Ltd. v. Whitlam (1980) 31 ALR 184

Comalco Limited v. Australian Broadcasting Commission (1985) 64 ACTR 11

Smith v. John Fairfax and Sons Ltd. (1987) 81 ACTR 1

Gutman v. Clouston and Australian Consolidated Press Limited (unreported, Gallop J., Supreme Court of the ACT, 13 July 1989)

McLean v. David Syme and Co. Ltd. (1970) 72 SR (NSW) 513

Toomey v. Mirror Newspapers Ltd. (1985) 1 NSWLR 173

Cawley v. Australian Consolidated Press Ltd. (1981) 1 NSWLR 225

Breavington v. Godleman and Others [1988] HCA 40; (1988) 169 CLR 41

McKain v. R.W. Miller and Company (South Australia) Pty. Limited [1991] HCA 56; (1991) 104 ALR 257

Woodger v. Federal Capital Press of Australia Pty. Limited (unreported, Miles C.J., Supreme Court of the ACT, 26 February 1992)

HEARING

CANBERRA
6:3:1992

Counsel for the plaintiff: Mr G. Richardson

Solicitors for the plaintiff: Phillips Fox

Counsel for the defendant: Mr Williams, QC

Solicitors for the defendant: Minter Ellison

ORDER

1. There be liberty to the plaintiff to proceed against the defendant in the action upon the following terms:
i) The statement of claim be filed and

served within 21 days.
ii) Further and better particulars of the
statement of claim be requested if thought necessary
within 21 days after service of the statement of claim.
iii) Further and better particulars of the
statement of claim be delivered within 21 days of any
request.
iv) Defence be filed and served within 21
days of delivery of statement of claim or of further
and better particulars if requested.
v) Discovery by both parties be given
within 21 days of service of defence.
vi) Adjourn to Master's list for directions
(on first Friday four months after today) unless
certificate of readiness filed sooner.

DECISION

This is an application by the plaintiff for leave to proceed under sub-s.11(1) of the Service and Execution of Process Act 1901 (the Act) and an application by the defendant for a stay of the proceedings brought by the plaintiff.

2. On 17 June 1991 the plaintiff issued a writ of summons out of this Court against the defendant claiming "damages costs and interest" for defamation. The registered office of the defendant was stated in the body of the writ to be at 250 Spencer Street, Melbourne in the State of Victoria. Pursuant to sub-s.5(1) of the Act, the writ had endorsed on it a notice for service outside the Australian Capital Territory and in the State of Victoria.

3. The writ also bore the following endorsement:

"The plaintiff's claim is for:
(1) Damages for the publication of
defamatory material of and concerning the plaintiff by
the defendant in a newspaper cartoon which appeared in
"The Age" newspaper on Tuesday, 7 May 1991 as set out
in the attached schedule hereto marked "A".
The said defamatory material was
published by the defendant in the Australian Capital
Territory and throughout Australia."

4. The schedule referred to is a photocopy of the cartoon in question. Sub-s.5(3) of the Act provides as follows:

"5(3) Every writ of summons for service under
this Act shall also contain or have indorsed thereon or
annexed thereto a short statement of the nature of the
claim made or the relief sought by the plaintiff in the
suit, and if the plaintiff sues in a representative
capacity shall also state such capacity."

5. It may be observed that sub-s.5(3) does not require endorsement of a complete statement of the claim of the plaintiff, what it does require is endorsement of a statement which is short in length and which is limited in subject matter to the nature of the claim or relief sought. What was endorsed on the writ in this case complied with the requirement of sub-s.5(3).

6. It is common ground that a copy of the writ was served on the defendant at its registered office in Melbourne and that the defendant is not present and does not carry on business in the Australian Capital Territory. It also appears to be common ground that the issue of the Age newspaper upon which the plaintiff relies was published in the Australian Capital Territory on or about 7 May 1991 and in the States and other Territories of Australia. I say that it is common ground because of what was said from the Bar table: the evidence on these matters which one would normally expect in an application for leave to proceed under sub-s.11(1) of the Act is lacking.

7. The plaintiff's case is that he should be granted liberty to proceed in this Court pursuant to para. 11(1)(d) of the Act. That paragraph provides for the granting of such liberty where it is made to appear to the Court that "any act .... for which damages are sought to be recovered, was done" within the State or part of Australia where the writ was issued. The plaintiff says that publication in the Australian Capital Territory is an act for which he seeks to recover damages.

8. The defendant's case is that the nature of the plaintiff's claim as endorsed on the writ involves a number of causes of action, each one arising in the respective particular State or Territory of publication as opposed to one discrete and single "act .... for which damages are sought to be recovered" which was done in the Australian Capital Territory.

9. If the plaintiff's claim cannot be brought within sub-s.11(1) or if the plaintiff is otherwise unsuccessful in persuading the Court to exercise its discretion to make an order giving him liberty to proceed under the sub-section, the defendant may obtain an order staying the proceedings, and may apply to do so without entering an unconditional appearance: Victorian Broadcasting Network Ltd. v. Whitlam (1980) 31 ALR 184. The power of the Court under sub-s.11(1) is very wide. Liberty to proceed may be granted in such manner and subject to such conditions as the Court may deem fit, and such an order may be made from time to time. Accordingly, it is within the power of the Court to grant liberty to the plaintiff to proceed subject to conditions that the case proceed by way of pleadings and that the plaintiff file and serve a statement of claim restricted to a claim for damages for publication within the Australian Capital Territory. However, counsel for the plaintiff submits that the plaintiff should be allowed to proceed against the defendant in this Court claiming damages for the consequences of the publication of the whole of the issue of the newspaper of 7 May 1991 within Australia.

10. At the heart of the dispute which arises from the two competing applications are two principles which may be seen to be in conflict: one, that Australia-wide publication of a newspaper is a separate tort in each State or Territory of publication: Comalco Limited v. Australian Broadcasting Commission (1985) 64 ACTR 11, Smith v. John Fairfax and Sons Ltd. (1987) 81 ACTR 1, and, the other, that a plaintiff may plead a single cause of action against a newspaper to recover as ordinary compensatory damages for the injury to his reputation caused by the entire issue of that newspaper published by the defendant be it within the State or Territory in which the action is brought or elsewhere: Gutman v. Clouston and Australian Consolidated Press Limited (unreported, Gallop J., Supreme Court of the ACT, 13 July 1989), McLean v. David Syme and Co. Ltd. (1970) 72 SR (NSW) 513, Toomey v. Mirror Newspapers Ltd. (1985) 1 NSWLR 173.

11. In Toomey Hunt J. said at p 178:

"In the case of a newspaper, there is a
separate publication (and thus a separate cause of
action) in relation to each copy delivered to a reader:
Duke of Brunswick v. Harmer (1849) 14 QB 185 at 189;
117 ER 75, at 76-77. If a newspaper circulates
100,000 copies of the one edition (defamatory of the
plaintiff), he has available to him at least 100,000
causes of action. The "single publication" rule
adopted in the United States, whereby a plaintiff is
given only one cause of action for each entire edition
of the newspaper, has not been adopted in this country:
see McLean v. David Syme and Co. Ltd. (1970) 72 SR
(NSW) 513 at 520, 528; 92 WN 611 at 616-617, 625.
It was nevertheless an accepted practice, even under
the common law system of pleading then in force in this
State, for a plaintiff to plead only one count to
comprehend a claim for damages based upon the
publication of the entire issue of a newspaper in this
State: ibid at 522, 528, 618-619, 625."

12. In McLean in the joint judgment of Mason J.A. (as he then was) and Manning J.A., it was said as

follows at p 528:
"Although our courts have not adopted expressly
the theory of the single publication rule, it has not
been the practice in actions for defamation arising out
of the publication of an issue of a newspaper that the
plaintiff should plead and prove each separate
publication of the newspaper. Defamation actions of
this kind have been dealt with on the footing that the
plaintiff may recover damages in respect of the entire
issue of a newspaper so long as he proves a publication
on one occasion, notwithstanding that there may be
multiple publications. Even the common-law system of
pleading in vogue in New South Wales has recognized the
sufficiency of one count in a declaration to comprehend
a claim for damages based on publication of the entire
issue of a newspaper in New South Wales.
Although the count in this case does not allege
specifically that the claim for damages arises partly
out of publication in the State of Victoria it alleges
that the defendant published the defamatory matter in
an issue of The Age newspaper, thereby making it plain
that the plaintiff was suing to recover damages in
respect of the entirety of that issue.
It was not for the appellant in pleading his
cause of action to negative defences which might be
raised in answer to so much of the claim for damages as
related to publication in Victoria and to aver that
publication of the matter complained of was unlawful or
unjustifiable by the law of Victoria, for it is
established that the law of Victoria is presumed to be
the same as that of New South Wales, unless the
contrary is shown ...."

13. In Toomey Hunt J. struck out of the plaintiff's statement of claim the words "in the States and Territories aforesaid" and gave leave to the plaintiff to insert instead the words "in the State of New South Wales". His Honour held, referring to Cawley v. Australian Consolidated Press Ltd. (1981) 1 NSWLR 225, that whichever way the publication was pleaded by the plaintiff, the defendant was entitled to plead to the interstate publication any defences available in the interstate jurisdictions.

14. In the light of the above, it may be said that the conflict between the two principles mentioned is more apparent than real, because the choice of the appropriate principle will depend upon how the plaintiff pleads the cause of action. If a plaintiff suing in this Court pleads a single cause of action arising out of the publication of a newspaper in the Australian Capital Territory, the plaintiff may nevertheless seek damages for the entire issue of the newspaper throughout Australia, and it may be assumed that the law relating to liability of the defendant is the same elsewhere as it is in the Territory, unless the defendant reminds the Court that it is otherwise. Alternatively, the plaintiff may plead separate causes of action arising in each State and Territory and will take on the burden of proving liability in each State or Territory according to the law of that State or Territory. In either case, however, the defendant is entitled to raise matters in defence according to the principles relating to "interstate torts" laid down by the High Court in Breavington v. Godleman and Others [1988] HCA 40; (1988) 169 CLR 41 and more recently in McKain v. R.W. Miller and Company (South Australia) Pty. Limited [1991] HCA 56; (1991) 104 ALR 257. The overriding principle is that, subject to a flexible exception, the Court where the action is brought will apply the substantive law of the place where the wrong occurred. The flexible exception is where the substantial connection of the parties, or of the proceedings, is in the place where the action is brought. In that circumstance the Court may apply the law of the place where action is brought. In a defamation case in Australia it may be appropriate to apply the law of the place where action is brought if the substantial connection of the parties, the publication and the subject matter are with the State or Territory where action is brought, despite publication in other parts of Australia. In Woodger v. Federal Capital Press of Australia Pty. Limited (unreported, 26 February 1992) I held that for those reasons and on the facts of that case the law of the Australian Capital Territory applied to the whole of the publication within Australia. Whether the facts in the present case justify a similar conclusion, it is too early to say.

15. In the present case the plaintiff's application is for relief provided for by statute. In reliance upon para.11(1)(d) of the Act, the plaintiff must show that "any act .... for which damages are sought to be recovered" (my emphasis) was done in the Territory. He does not have to show that there is a single relevant act which was done in the Territory from which all damages flow, nor that all acts giving rise to the damages claimed occurred in the Territory. It is sufficient, in my view, for the purposes of para. 11(1)(d) that in the case of an action for defamation arising out of the publication of a newspaper that the plaintiff show that there was publication within the Territory, whether of the whole or of part of that issue. That the plaintiff's claim encompasses damages for the entire issue of that newspaper within Australia does not, as a matter of law, disentitle the plaintiff from being granted liberty to proceed. Nor, in my view, in the circumstances of this case does it mean that the discretion of the Court should be exercised so as to refuse liberty to proceed. The plaintiff's claim should be allowed to proceed, subject to proper formulation in a statement of claim, with the furnishing of further and better particulars, if appropriate. The defendant should have the opportunity to plead matters in defence according to what allegations are made about distribution of the issue of the defendant's newspaper in different parts of the country. If it subsequently appears that in the interests of justice or otherwise the action or part of the action should proceed in a court somewhere else in Australia, the cross-vesting scheme is more than adequate to deal with that situation.

16. I think that it was appropriate that both parties took the step of applying to the Court as they did and although the defendant has been unsuccessful in the application for a stay, I think that the appropriate order for costs is costs in the cause. The plaintiff was of course obliged to bring the application for liberty to proceed regardless of whether or not it was opposed by the defendant. However, I will hear counsel on the question of costs, if necessary.

17. I grant liberty to the plaintiff to proceed against the defendant in the action upon the following terms:

1. Statement of claim to be filed and served
within 21 days.
2. Further and better particulars of the statement
of claim to be requested if thought necessary within 21
days after service of the statement of claim.
3. Further and better particulars of the statement
of claim to be delivered within 21 days of any request.
4. Defence to be filed and served within 21 days
of delivery of statement of claim or of further and
better particulars if requested.
5. Discovery by both parties to be given within 21
days of service of defence.
6. Adjourn to Master's list for directions (on
first Friday four months after today) unless
certificate of readiness filed sooner.