Lamont v Dwyer & Ors [2007] ACTSC 47 (6 July 2007)

Last Updated: 28 July 2008

CHRISTOPHER SHAUN LAMONT v PHILLIP JOHN DWYER & ORS

[2007] ACTSC 47 (6 July 2007)

PRACTICE AND PROCEDURE - Third Party claim - whether available in defamation action - whether appropriate.

CROSS-VESTING - Application to transfer - convenience of defendant - not in interests of justice.

Law Reform (Miscellaneous Provisions) Act 1955

Supreme Court Act 1933

Justice and Community Safety Legislation Amendment Act 2006

Civil Law (Wrongs) Act 2002, s 19, s 21

Defamation Act 2001

Jurisdiction of Courts (Cross Vesting) Act 1993, s 5

Theophanous v The Herald & Weekly Times Limited [1994] HCA 46; (1994) 182 CLR 104

Merryweather v Nixan (1799) 101 ER 1337

Alan Le Busque v ACP Publishing Pty Limited [2006] ACTSC 46

Simeone v Walker [2006] SASC 387

Meagher, Gummow and Lehane's Equity, Doctrine and Remedies, 4^th ed, 2002, Butterworths, Chapter 41

Clerk & Lindsell on Torts, 19^th ed, Sweet and Maxwell, London 2006

No. SC 453 of 2006

Judge: Connolly J

Supreme Court of the ACT

Date: 6 July 2007

IN THE SUPREME COURT OF THE )

) No. SC 435 of 2006

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: CHRISTOPHER SHAUN LAMONT

Plaintiff

AND: PHILLIP JOHN DWYER

Defendant

AND: MAURICE DUNLEVY

First Third Party

AND: NATIONWIDE NEWS PTY LIMITED

Second Third Party

ORDER

Judge: Connolly J

Date: 6 July 2007

Place: Canberra

THE COURT ORDERS THAT:

1. The third party notices be dismissed. Costs to follow the event.

2. The application for the action to be transferred be dismissed with costs.

1. These are two interlocutory applications arising from a defamation claim. The substantive action is a claim by Mr Christopher Lamont that he was defamed by Mr Phillip Dwyer in two letters written to the Prime Minster on 11 April and 21 April 2006. It is also said that Mr Dwyer defamed Mr Lamont by providing a copy of the first letter to Mr Maurice Dunlevy, a journalist with The Australian newspaper. That newspaper published a story on 2 May 2006.

2. The matters complained of in the letters are, on their face, serious and prima facie defamatory. Mr Dwyer wrote to the Prime Minister in his capacity as the National President of "The Builders Collective of Australia" (BCA). His letter opens by stating that he writes "on behalf of thousands of builders right across Australia". It is apparent that there has been a significant issue for some years concerning the appropriate way Federal and State governments should regulate the building industry to protect consumers and builders in relation to the issue of builders' warranty insurance. It is apparent that Mr Dwyer feels strongly that the present regime imposed by most State and Territory Governments, which involves insurances delivered through the Housing Industry Association (HIA) is inappropriate, and he has been lobbying for some time, as is his right.

3. He arranged a meeting with the then relevant Federal Minister, the Hon Fran Bailey, in which he put forward his concerns. Mr Lamont was, at the time, Chief of Staff to Ms Bailey, and attended this meeting. Mr Lamont later left this employment and commenced employment as a senior officer within the HIA.

4. Mr Dwyer's letter to the Prime Minister states that, "this letter is to serve no other purpose than to discredit the HIA, their executive and their directors". It goes on to make various allegations, principally that Mr Lamont was corrupt and abused his position as Chief of Staff to the Minister. These are all set out appropriately in the amended statement of claim of 4 December 2006 and go to an allegation of conflict of interest of an alleged failure to properly advise the Minister. The letter concludes by asserting that the letter will be released to the press together with accompanying evidence.

5. Solicitors acting for Mr Lamont and the HIA wrote to Mr Dwyer on 18 April 2006 demanding an immediate retraction and withdrawal of the allegations and an apology. This fact was subsequently reported in the article of 2 May 2006 in The Australian entitled, "HIA threatens legal action over home insurance allegations". This article reports that the letter:

... alleges that former government adviser Chris Lamont, now the HIA's federal relations director in Canberra, effectively buried a submission critical of the HIA-dominated compulsory insurance scheme.

It quotes a spokesman for Minister Bailey stating that:

... the former chief-of-staff had raised the matter with the minister, who later wrote to state ministers with responsibility for builders warranty insurance, expressly raising the concerns of the BCA.

6. Mr Lamont initiated the defamation proceedings against Mr Dwyer on 9 June 2006. Although National President of an organisation said to represent thousands of builders throughout Australia, Mr Dwyer has sought to represent himself in these proceedings. Defamation law is a notoriously technical area of the law and an area where experienced legal advice is clearly an advantage. A defence was filed by Mr Dwyer on 15 November 2006 admitting that he wrote the letters but pleaded, in effect, privilege and qualified privilege and, at least potentially, a Theophonous type defence (see Theophanous v The Herald & Weekly Times Limited [1994] HCA 46; (1994) 182 CLR 104) in that the letters were "reasonable in their intent and communicated in good faith. They were sent to the Prime Minister of Australia, Mr John Howard, complaining about the inaction of the Federal Minister of Small Business, Ms Fran Bailey, and her staff including Mr Christopher Lamont".

7. On 15 November 2006, Mr Dwyer filed a third party notice and statement of claim on Mr Dunlevy and Nationwide News, publisher of The Australian, to have them joined in the proceedings. Following the filing of an amended statement of claim in December 2006, the defendant filed an amended defence and third party notice in February 2007. The third parties filed an application for the third party notices to be struck out.

8. In March 2007 Mr Dwyer filed an application for the entire matter to be cross-vested to the Supreme Court of Victoria.

9. Mr Dwyer sought to amend the form of his third party notices shortly before the hearing of these applications, but these were defective in form, and not accepted by the Registry in accordance with the Rules. Nevertheless, the third parties were in a position to meet the amended form of the notices, and indeed had prepared their argument to meet the revised form. Accordingly, on the day of the hearing, I gave leave for the defendant to file in court amended third party notices, and for the third parties to file an amended application for these to be struck out, so that the matter could proceed on the merits.

The application to strike out the Third Party notices

10. The third parties seek to have the notices struck out on a variety of bases. Most fundamentally, they argue that third party notices are no longer an appropriate form of relief in defamation proceedings.

Are Third Party proceedings available in defamation proceedings?

11. At common law, there is no right of contribution between defendants in an action based in tort and a plaintiff may, in effect, pick and choose whom they wish to sue. Generally, in defamation proceedings, the plaintiff will seek to sue the media outlet, as that entity may be thought to be more likely to meet a judgment. Thus, if "The Daily Bugle" was to publish a story that said "Smith claims Brown is corrupt", Brown would have a cause of action in defamation against both Smith and The Daily Bugle, but in most cases could be expected to sue the newspaper.

12. The common law doctrine that there is no right to contribution between tortfeasors is well established (Merryweather v Nixan (1799) 101 ER 1337). This rule has, in Australia as in most other common law jurisdictions, been modified by statute. Historically, the basis of the right to claim contribution was then found in the Law Reform (Miscellaneous Provisions) Act 1955, and in s 28 of the Supreme Court Act 1933 (counter claim and third parties). This latter provision, in quite broad terms, was omitted by the Justice and Community Safety Legislation Amendment Act 2006, while the provision in the Law Reform (Miscellaneous Provisions) Act was repealed by the Civil Law (Wrongs) Act 2002.

13. The law in relation to contribution between tortfeasors is now found solely in the Civil Law (Wrongs) Act 2002. Section 21 - Right of contribution - is in apparently broad terms, providing by s 21(1) that:

A person (the first person) who is liable for damage caused by a wrong can recover contribution from someone else (a contributory) who is also liable for the same damage.

14. However, this is based on liability for "damage caused by a wrong", and "wrong" is defined for the purposes of this part of the Act as an act or omission "that gives rise to a liability in tort in relation to which a defence of contributory negligence is available at common law" (s 19). An action for defamation is not a form of tortious action which gives rise to a defence of contributory negligence unlike, say, a claim for damages for negligence for personal injury. It seems to me that the clear parliamentary language of the Civil Law (Wrongs) Act is to exclude defamation actions from the statutory entitlement for a defendant to join third parties to an action, leaving the position that of the common law, which does not recognize such a right. No such right is granted by the Defamation Act 2001, which otherwise codifies many procedures relating to defamation actions in this jurisdiction.

15. It follows from this that the third party notices should be dismissed, as they are a form of procedure no longer available in a defamation action.

16. Counsel for the third parties argued, in the alternative, that, even if the third party notices were an appropriate form of pleading in a defamation proceeding, they should, in any event, be stuck out. It is thus appropriate to consider the form of the pleading.

17. The Third Party Notice, filed in court on 18 June 2007, in its amended form sets out the claim as follows:

1. The Defendant claims the First Third Party [Mr Dunlevy] breached his confidence in supplying a letter in strictest confidence to the Plaintiff on or around 11 April 2006 thus exposing him to legal action filed on 9 June 2006.

2. Secondly, the substantive component of the Statement of Claim (the third matter complained) filed by the Plaintiff on 9 June 2006 is in relation to an article written by Mr Maurice Dunlevy, the First Third Party, and published by the Second Third Party, Nationwide News Pty Ltd, in The Australian dated 2 May 2006. The Plaintiff claims this article is defamatory.

18. The breach of confidence claim is supported by an affidavit from Mr Dunlevy, filed by Mr Dwyer. It is apparent that Mr Dunlevy has for some time been following the issues concerning builders' warranty insurance. He admits that he was aware from conversations that Mr Dwyer was proposing to write to the Prime Minister in April 2006. He states:

I requested from Mr Dwyer a copy of the letter as soon as he decided to send it and assured Mr Dwyer that the privileged and confidential nature of the letter would not be compromised.

19. He says that on reading the letter, he sought comment from the Prime Minister's Department, and from Mr Lamont, who requested a copy of the letter. He states:

I told Mr Lamont I would email him a copy of the letter in total confidence. Mr Lamont agreed and stated he would honour my confidence.

20. It is understandable that Mr Dwyer is concerned that the letter, which he provided to the journalist on the basis that the journalist, on his own admission, would not compromise the confidential nature of it, was promptly supplied by the journalist to the person, the subject of the defamatory comments. However, this does not mean that a third party claim in these defamation proceedings is the way for Mr Dwyer to resolve this dispute.

21. If Mr Dwyer was to lose the defamation action, and if it could be shown that the only reason Mr Lamont came to know that he had been defamed in the letter to the Prime Minister was because Mr Dunlevy, in an alleged breach of confidence, had supplied him with the contents of the letter, it is conceivable that Mr Dwyer would have a claim. I say conceivable because there would be a number of hurdles, both legal and evidential, in his way. The most obvious is the fact that the letter, containing the defamation, was sent to the Prime Minister in Canberra. It would, presumably, have been opened by advisers, and appropriate steps would have been taken to prepare a response for the Prime Minister's consideration. This would, presumably, have involved seeking advice from departments, including the relevant department. This process, as a matter of fairness, could well have involved Mr Lamont being advised of the letter in this way. That is to say, the causal link between the letter being passed to Mr Lamont by Mr Dunlevy, and any damage sustained, may be difficult of proof.

22. Regardless of this potential evidential difficulty, it is hard to see the basis for an action for breach of confidence between Mr Dwyer and Mr Dunlevy. There appears to have been no contractual relationship, and no tortious duty is identified, so any action would have to be based on the equitable doctrine of breach of confidence (Meagher, Gummow and Lehane's Equity, Doctrine and Remedies, 4^th ed, 2002, Butterworths, Chapter 41). The pleading as it stands in the third party notice does not, with any degree of precision, identify what is said to be the confidential information (the content of the letter, the fact of the letter, or both). The letters on their face say they will be made public. Moreover, it is not clear what the confidential information contained in the letters is said to be (Clerk & Lindsell on Torts, 19^th ed, Sweet and Maxwell, London 2006, pars 28-07 ff).

23. It seems to me that, even regardless of the clearly inadequate way in which the breach of confidence issue has been sought to be pleaded here, the third parties' objection that this matter should not be joined in the instant defamation proceedings, but should await the outcome of those proceedings, is compelling as it is only if the defendant loses this action, and damages are awarded, that he will be entitled to seek to recover some or all of those damages in some form of breach of confidence action against the journalist. To join these proceedings to the defamation claim would, it seems to me, only add complexity to the defamation proceedings. The third party claim against Mr Dunlevy, insofar as it sets up a breach of confidence claim, should be struck out.

24. The third party claim against Nationwide News is based on the argument that the "substantive component" of the third matter complained of is the article written by Mr Dunlevy and published by The Australian on 2 May 2006.

25. The third party argues that, in truth, it is only certain parts of the article published by it that are complained of and, indeed, the plaintiff has chosen not to bring an action for defamation against the publisher of the newspaper. As counsel for the newspaper put it in his written submissions:

The article contains important counter-balancing material, such as by fairly putting the plaintiff's side of the story. As a result, the article and the letters convey different meanings about the plaintiff. It is no doubt for this reason that the plaintiff has not sued upon the article as a whole.

26. For this reason, the potential liability of the defendant, and the potential liability of the third parties, are quite different. Mr Lamont, in his pleading to the third matter complained of, quite specifically complains only of so much of the newspaper article as was attributable to Mr Dwyer. The newspaper cannot be held responsible for only part of what it published, because it is entitled to have its conduct judged on the article as a whole. A newspaper which carefully puts both sides of a story may not be liable in defamation even though, if it had published only part of the story, that could amount to defamation.

27. It seems to me that, even if it is still open to file third party proceedings in a defamation claim, in the circumstances of this case, and for the reasons I have set out, these claims should be struck out. Costs to follow the event.

The Cross-Vesting Application

28. Mr Dwyer has filed an application that these proceedings be transferred to the Supreme Court of Victoria. The Jurisdiction of Courts (Cross-Vesting) Act 1993 makes provision for transfers of proceedings pursuant to s 5(2) which provides:

(2) Where--

(a) a proceeding (in this subsection called the "relevant proceeding") is pending in the Supreme Court (in this subsection called the "first court"); and

(b) it appears to the first court that--

(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court;

(ii) having regard to--

(A) whether, in the opinion of the first court, apart from this Act and a law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory;

(B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of that other State or Territory and not within the jurisdiction of the first court apart from this Act and a law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and

(C) the interests of justice;

it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory;

the first court shall transfer the relevant proceeding to that other Supreme Court.

29. The defendant here must be taken to be relying on the "otherwise in the interests of justice" provision. The proceedings, on their face, are regularly brought in this Court. Mr Lamont, by his pleading and by affidavit brought in this application, is a resident of this jurisdiction and so has a right to commence proceedings in this Court. The matters complained of are two letters sent to the Prime Minster at the address of "Parliament House, Canberra" and so "publication" occurred, on the face of the pleadings, in this jurisdiction. The third matter complained of was published in a newspaper circulating in this jurisdiction, as well as in other parts of Australia. No part of the action involves matters "incapable of being instituted" in this Court, or matters involving laws of other jurisdictions.

30. Mr Dwyer, in his affidavit of 28 February 2007, says that he is inconvenienced as a litigant in person by having to defend proceedings in this Court when his residence is in Victoria. He says that he is not in good health and he would suffer less stress if these proceedings could be defended in Victoria. He produces statements from doctors generally supporting such a proposition. He states that he has no assets, bank accounts or general income, other than some funds from a company controlled by him and his wife. I note in passing that such grave impecuniosity is unexpected given that the letter complained of asserts that he is the National President of an association representing "thousands of builders throughout Australia". He claims that he would find it easier to obtain pro bono legal assistance in Victoria, but the document filed with his affidavit from the Victorian Bar falls well short of saying that such assistance would be provided were the matter to be transferred to Victoria.

31. Mr Lamont's evidence in opposition to the application for transfer, filed by his solicitor, states that he is resident in this jurisdiction, and his employment is and has been within this jurisdiction, either as an adviser to a Commonwealth Minister or as an employee of national representative organisations such as the HIA, in effect, as a lobbyist. It is said that the particular sting in the claimed defamation is of particular significance for a person whose employment in these fields depends on a reputation for a certain probity. It is also said that those who would give evidence in his case are principally located in Canberra and that, to the extent that documents are likely to be necessary to be obtained, those would also be located in Canberra.

32. The appropriate approach to adopt where a party seeks to rely on the "otherwise in the interests of justice" provision was recently considered in this Court in a decision of Crispin J in Alan Le Busque v ACP Publishing Pty Limited [2006] ACTSC 46. His Honour said (at [6]):

This concept was recently considered by the High Court of Australia in BHP Billiton Ltd v Schultz [2004] HCA 61; [2004] 221 CLR 400. The majority, Gleeson CJ, McHugh and Heydon JJ, explained, at [14], that in applications of this nature the court is not required to consider whether it is justified in refusing to exercise a prima facie duty to exercise a jurisdiction that has been regularly invoked but rather to fulfil a statutory requirement to ensure that cases are heard in the forum dictated by the interests of justice. Hence, the relevant question is not whether the first court is a "clearly inappropriate" forum but whether, in the interests of justice, the second court is more appropriate. Their Honours observed at [15-16] that the interests of justice were not the same as the interests of any one party. ... For example, if a plaintiff were near to death and it appeared that the court to which transfer was sought could not deal with the case expeditiously then that would be a relevant consideration. On the other hand, there may be cases in which the advantage which a plaintiff might gain from proceeding in one court would be matched by a corresponding and commensurate disadvantage to a defendant and justice would not attribute greater weight to the interest of one than the other. Their Honours also said at [18] that references sometimes made to one jurisdiction or another as the "natural forum" were usually based upon a consideration of "connecting factors" described by Lord Gough in Stiliada Maritime Corp v Cansulex Limited [1987] AC 460 at 478, including matters of convenience and expense such as the availability of witnesses, the places where the parties respectively reside or carry on business and the law governing the relevant transaction.

33. In the present case, the proceedings are clearly properly brought, and indeed naturally brought, within this jurisdiction, and the ACT could well be described as the "natural forum". Mr Dwyer took me to a recent decision of the South Australian Supreme Court in Simeone v Walker [2006] SASC 387 (18 December 2006), where that Court transferred a defamation action where the second defendant successfully applied to transfer an action from that Court to the Supreme Court of Queensland. However, as it appeared in the extract from that decision provided by Mr Dwyer, the second defendant, who resided in the United States, agreed to the transfer, and the evidence established that the bulk of the witnesses, including the plaintiff, resided and worked in Queensland. The Court noted that the connection with South Australia was quite slender and the overwhelming link was with Queensland. That is not the case here.

34. The application is really based on the basis that it would be more convenient for Mr Dwyer to defend this action in person in Victoria. This may be in his interests, but it falls well short of being in the interests of justice. He chose to publish the material to a Canberra address. Although he published the material in his capacity as the National President of what is claimed to be an organisation representing thousands of builders across Australia, he claims to be without assets or income and unable to afford legal representation. Be this as it may, Mr Lamont, who lives in Canberra and works in Canberra and who claims to have been defamed in Canberra, has a legitimate interest in having his reputation upheld in an action for defamation brought in the jurisdiction where the claimed defamation occurred.

35. This latter factor was considered of some significance in the matter of Le Busque v ACP Publishing (supra). There, Crispin J observed that the plaintiff had commenced proceedings to vindicate his reputation and obtain a decision in his "home town" and then said, in words that I would respectfully adopt (at [10]):

Defamation actions have long been accepted as means by which plaintiffs can not only obtain damages but also vindicate reputations damaged by the defamatory matter. The latter consideration may be a legitimate object of such proceedings irrespective of the forum in which they are ultimately litigated. It is, therefore, appropriate to consider whether the remedy available to the plaintiff in the event of a judgment in his favour would be more effective if delivered in the city in which he lives and carries on his professional activities. This is not an issue that can be dismissed on the basis that any advantage to the plaintiff would be matched by a corresponding and commensurate disadvantage to the defendant but one that, in my opinion, may be relevant to the interests of justice.

36. In the present case, the defendant has a personal interest in having the matter transferred to Melbourne, but the plaintiff has a personal interest in having the matter litigated in Canberra. The matter is ordinarily and properly brought within this jurisdiction. The defendant is brought to this Court because, having been offered the opportunity of apologising and retracting allegations of corruption, he refused. The plaintiff is entitled to proceed with this action in this forum, and the defendant's personal convenience in more conveniently representing himself if the action were to be transferred, falls well short of requiring a transfer in the interests of justice.

37. The application for the action to be transferred is dismissed with costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 6 July 2007

Counsel for the plaintiff: Mr P Reilly

Solicitor for the plaintiff: DLA Phillips Fox

Counsel for the defendant: Litigant in person

Solicitor for the defendant: -

Counsel for the third parties: Mr J Hmelnitsky

Solicitor for the third parties: Blake Dawson Waldron

Date of hearing: 18 June 2007

Date of judgment: 6 July 2007