Commisso v United Telecasters Sydney Pty Limited and 8 Ors [1999] NSWSC 51 (12 February 1999)

Last Updated: 17 February 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Commisso v United Telecasters Sydney Pty Limited & 8 Ors [1999] NSWSC 51

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 11626 of 1989

HEARING DATE{S): 18 December 1997

JUDGDMENT DATE: 12/02/1999

PARTIES:

GUISEPPE MARIO COMMISSO

(Plaintiff)

v

UNITED TELECASTERS SYDNEY PTY LIMITED

(First Defendant)

CHRIS MASTERS

(Second Defendant)

JOHN BUDD

(Third Defendant)

JAYNE ANDERSON

(Fourth Defendant)

PAUL REE

(Fifth Defendant)

MARK MIDDIS

(Sixth Defendant)

PRUE MILLER

(Seventh Defendant)

NICK MURRAY

(Eighth Defendant)

PAUL WILLIAMS

(Ninth Defendant)

JUDGMENT OF: Levine J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Mr M Neil Q.C.

(Plaintiff)

Mr T Blackburn

(Second, Third, Fifth, Sixth, Eighth & Ninth Defendants)

SOLICITORS:

John Carmody & Co

(Plaintiff)

Blake Dawson Waldron

(First, Second, Fifth, Sixth & Eighth Defendants)

Gilbert & Tobin

(Fourth Defendant)

CATCHWORDS:

Summary Dismissal - SCR Pt 21 rr 1 & 13 - SCR Pt 13 r 5

ACTS CITED:

Supreme Court Rules

DECISION:

See paragraph 79

JUDGMENT:

- 36 -

DLJ : 1

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

Defamation List

No. 11626 of 1989

JUSTICE DAVID LEVINE

FRIDAY 12 FEBRUARY 1999

GUISEPPE MARIO COMMISSO

(Plaintiff)

v

UNITED TELECASTERS SYDNEY PTY LIMITED

(First Defendant)

CHRIS MASTERS

(Second Defendant)

JOHN BUDD

(Third Defendant)

JAYNE ANDERSON

(Fourth Defendant)

PAUL REE

(Fifth Defendant)

MARK MIDDIS

(Sixth Defendant)

PRUE MILLER

(Seventh Defendant)

NICK MURRAY

(Eighth Defendant)

PAUL WILLIAMS

(Ninth Defendant)

JUDGMENT (Summary Dismissal - SCR Pt 21 rr 1 & 13 - SCR Pt 13 r 5)

1 By Notice of Motion filed on 8 October 1997 the second, third, fifth, sixth, eighth and ninth defendants move the Court for orders that the proceedings be stayed or dismissed for want of prosecution; that service of the "Amended Statement of Claim" on the second, third and ninth defendants be set aside; the second defendant have leave pursuant to SCR Pt 21 rr 1 and 3 to withdraw his appearance and defence and that the proceedings summarily be disposed of as against the fifth, sixth and eighth defendants pursuant to SCR Pt 13 r 5.

2 By reason of the nature of the relief sought by the various parties, it is necessary to set out at some length the rather extraordinary history of this litigation.

3 On 24 April 1989 United Telecasters (as it then was) - Channel Ten - telecast a program with the title "Page One". The program, Exhibit 2 (being the videotape thereof in the proceedings before me), is approximately one hour in length and deals with the assassination of Colin Winchester and the investigation by the program into what is described as "two secret societies", the L'Honnorota ("the so-called Mafia"), and the police. The transcript is 1,057 lines, 29 pages, and at lines 695-761 there is a reference to Joe Commisso, the relevant part of which is:

"Bribing policemen is one of L'Honnorata's favourite hobbies. A second Bungendore defendant, Mario Cannistra, is known to his colleagues as Il Volpae, "The Fox". He was offering a lot more money aiming to catch a bigger fish - the then AFP Chief, Superintendent Colin Winchester. In February 1984 Mario Cannistra and his brother-in-law Joe Commisso approached one of Winchester's colleagues who secretly tape recorded the encounter".

4 (It does not assist when the Statement of Claim wrongly, I gather, alleges publication on 24 April 1988. An Amended Statement of Claim repeats the error and it is not until there is a Further Amended Statement of Claim that came into existence in 1997 that this error is corrected).

5 With commendable promptitude, on 27 April 1989, the solicitors for the plaintiff wrote a Letter of Demand to Channel Ten enclosing a form of apology required to be published. Nothing indicates that this "apology" was published though there is a later indication as to a "correction".

6 On 10 May 1989, 16 days after the publication, a Statement of Claim was filed in which it was contended that the matter complained of conveyed the following imputations of the plaintiff:

"3(a) That the plaintiff participated in the brutal murder of Colin Winchester, an Assistant Commissioner of the Australian Federal Police;

(b) That the plaintiff was a member of an organised society of criminals known as L'Honnorata which engaged in murder, bribery and the production of illegal drugs;

(c) That the plaintiff had bribed members of the New South Wales Police Force;

(d) That the plaintiff had participated in an attempt to bribe Colin Winchester, an Assistant Commissioner of the Australian Federal Police;

(e) That the plaintiff had engaged in the criminal activity of producing large quantities of the illegal drug marijuana".

7 Particulars of Identification appended to the Statement of Claim state that the plaintiff is known as "Joe Commisso" and is the brother-in-law of Mario Connistra.

8 The Particulars of Aggravation rely upon the falsity of the imputations and the failure of the defendant to check its allegations with the plaintiff and give him and opportunity to deny them. It is contended that the defendant knew or ought to have known it was making an extremely serious and defamatory charge against the plaintiff to which he could not respond prior to publication. I gather the position to be that the plaintiff is the brother-in-law of Connistra as alleged and is known as Joe Commisso; however, the plaintiff had absolutely nothing to do with the transaction referred to in the program.

9 On 25 May 1989 Channel Ten filed its appearance and on 27 June its Defence. The only defence is that the matter complained of is not defamatory in that it does not convey the imputations pleaded. In mitigation of damages the defendant relies upon the circumstances in which it is proved by the plaintiff that the publication was made.

10 There then occurs what appears to be the first "delay". The Short Minutes of Order made on 26 May 1989 by David Hunt J presumes that a Reply would be filed, but in any event provided for the exchange of Lists of Documents and inspection to take place by 25 August that year. It was not until 28 March 1990 (nine months delay) that the plaintiff filed his List of Documents and thereafter on 25 June 1990 the defendant filed its List of Document (a delay of three months).

11 In any event, by 13 September 1990 all interrogatories had been answered and on 19 October the matter was entered into the Long Matters Callover List for call up after 31 March 1991. Apart from the delays referred to, the course of the action appears to have been unremarkable, it being ready for trial within 18 months of the date of the publication sued upon.

12 Then on 4 June 1991 the defendant corporation went into liquidation (an unusual occurrence in this kind of litigation). On 4 June the solicitors for the plaintiff wrote to the solicitors for the defendant noting that the latter's former client was now in liquidation but, importantly, giving notice that their client was to "give consideration to whether or not to join the journalists involved in the broadcast and the manager of the defendant company or other officer who authorised publication" (Exhibit A). The plaintiff's solicitors also sought the identity of such persons. Exhibit B is the reply dated 5 June 1991 from Messrs Dawson Waldron who merely informed the solicitors for the plaintiff that their letter had been forwarded to the liquidator and of the requirement of the leave of the Court to continue the proceedings against the company in liquidation (Exhibit B). The file indicates that a Notice of Motion and affidavit in support was filed on 9 December 1991 and returnable on 13 December purportedly pursuant to s 500(2) of the Corporations Law seeking leave to proceed. This is the subject of the correspondence constituting Exhibit C between the plaintiff's solicitors and the firm of accountants handling the liquidation of the first defendant. The Court record indicates that on 13 December 1991 the matter was stood over generally in order to file some evidence in support of the application.

13 On 27 May 1993 the plaintiff filed a Notice of Motion seeking leave to continue the proceedings against the first defendant and leave to join Masters, Budd, Anderson, Ree, Middis, Miller, Murray and Williams. On 6 August 1993 leave to continue against the first defendant was granted and the liquidators were joined as defendants. It can be seen that there was a two year gap between the plaintiff becoming aware of the first defendant going into liquidation and the plaintiff taking steps to proceed against the company in liquidation and joining the other defendants.

14 Leave to join nine individual defendants was granted by me on 20 August 1993. It was not however until about six months later that on 9 February 1994 an Amended Statement of Claim was filed.

15 In February 1994 there were unsuccessful attempts to serve Paul Williams. The Amended Statement of Claim was served on Paul Ree on 27 February 1994 (fifth defendant); on Nick Murray on 3 March 1994 (eighth defendant); on Mark Middis on 9 March 1994 (sixth defendant).

16 It is to be noted that as at 9 February 1996 under SCR Pt 7 r 7 (as it then was) the Amended Statement of Claim filed on 9 February 1994 became "stale" and any service thereafter would be "irregular".

17 It was on 17 March 1996 that that Amended Statement of Claim was served on Chris Masters (second defendant). As at that stage neither Williams nor Budd had been served. The matter was listed in the Defamation List on 26 April and notices thereof were given to served defendants other than Budd and Williams. On 19 April a letter was written to the second defendant (Masters) notifying him that failure to file a defence would trigger an application by the plaintiff for an order for judgment. The matter was in the Defamation List on 26 April 1996, 10 May 1996 on which latter date notice was again given to the second defendant (Masters) of an intention to seek judgment.

18 On 17 May 1996 Notices of Appearance were filed on behalf of Masters and Budd the latter however had not been served. On 21 May 1996 a Notice of Appearance was filed on behalf of Murray (eighth defendant).

19 On 31 May Defences were filed by Masters, Budd and Murray. On 7 June 1996 leave was granted to Budd to withdraw his appearance and Defence pursuant to SCR Pt 21 rr 1 and 3.

20 Nine months later on 21 March 1997 orders for substituted service on John Budd were made.

21 On 18 April 1997 the Court file indicates that I granted leave to the plaintiff to file an Amended Statement of Claim. The copy of that document in the Court file bears the notion "by order 18-4-97" but is not otherwise sealed or stamped.

22 On 30 April 1997, as I understand it, that Amended Statement of Claim was served on John Budd's employer and on Paul Williams on 4 July 1997.

23 With respect to the second defendant (Masters) that litigant filed a Defence on 31 May 1996. It is a minimalist defence putting in issue whether the matter complained of was defamatory and raising one matter in mitigation of damages, not, I note, anything to do with the publication of a correction. On 6 February 1997 Mr Masters delivered a list of documents and answered interrogatories on 21 March 1997. The third defendant (Budd) filed a Defence on 31 May. It was, as I have indicated, withdrawn.

24 As to the fifth defendant (Paul Ree), a Defence was filed in Court on 12 July 1996. This Defence raises the same issues as that of the second defendant. The sixth defendant filed a Defence in Court on 12 July 1996, in the same form as the other defendants.

25 The eighth defendant (Nick Murray) filed his Defence on 31 May 1996. As I have said none of the defendants relies on qualified privilege; however, on 10 December 1997 there was filed in Court an Amended Defence for Mr Murray which includes defences of qualified privilege both under s 22 of the Defamation Act, 1974 and at common law, the foundation being that he was the legal adviser to the first defendant.

26 In anticipation of the hearing of this motion directions were given to the plaintiff to give particulars of the facts, matters and circumstances upon which reliance would be placed that the relevant defendants "broadcast" and "published" the matter complained of.

27 It is now appropriate to identify, isolate and discriminate between the defendants in respect of what each says as to his or her role.

28 It is particularised in Exhibit D, the letter supplying particulars dated 16 December 1997, that the second defendant (Masters) broadcast/published the matter complained of in that he (i) was a party to the preparation of the program for subsequent broadcast; (ii) was involved in the preparation of the program for subsequent broadcast; (iii) was aware that the program would be broadcast in the Sydney Metropolitan Area and most, if not all, State capitals; (iv) was involved in the publishing of a correction; (iv) has made no apology to the plaintiff. The last mentioned is an odd component of the case to establish publication; it may be that it was influenced by the decision of the Court of Appeal in Rigby v John Fairfax Group Pty Ltd (Court of Appeal, 1 February 1996, unreported). There is no need, however, to resolve this at this stage.

29 In his sworn answers to interrogatories (Annexure N to the affidavit of J. E. Carmody sworn 16 October 1997) Mr Masters states:

"1A. Was the second defendant a party to the preparation of the programme known as `Page One' on 24 April 1989?

1B. Yes.

2A. Was the second defendant in any way involved in the preparation of the said programme?

2B. Yes.

3A. If the answer to 1 or 2 above, or both is yes, in what capacity was the second defendant party to or otherwise involved in the preparation of the said programme?

3B. The second defendant was the reporter responsible for co-ordinating research, preparing the script and presenting the report.

4A. If the answer to 1 or 2 above, or both is yes, state all facts relating to the second defendant's participation/involvement in the preparation of the said programme.

4B. The second defendant became involved in preparing the report about two weeks after the death of Colin Winchester. The second defendant's participation included:

(a) suggesting to the Executive Producer that it was appropriate for the second defendant to do a report that analysed the investigation of Colin Winchester's murder;

(b) identifying potential interviewees;

(c) interviewing the majority of witnesses and other people whose knowledge was relevant to the matter complained of;

(d) preparing and amending the script in consultation with the producer including the shooting script, rough cut and final script;

(e) presenting commentary;

(f) assisting with editorial overview including consultations with the producer and researcher, and with the Executive Producer and the Associate Producer; and

(g) assisting with station publicity.

5A. Was the second defendant a party to the broadcast of the programme known as `Page One' on 24 April 1989?

5B. The second defendant was not involved in any steps or decisions taken to transmit the prepared programme however was involved in the preparation of the programme for subsequent broadcast as set out above.

6A. Was the second defendant in any way involved in the broadcast of the said programme?

6B. The second defendant refers to 5B above".

30 I happen to note that the plaintiff in the correspondence which provides the further and betters particulars makes complaint of the failure of this and the other defendants to answer a series of interrogatories (11-15). Whether or not the defendants can be compelled to answer those interrogatories will remain to be seen. In the light of the fact that the only issue as between the parties is libel or no libel and the circumstances of the publication complained of then there may be a case allowing for the position the defendants took in relation to these interrogatories.

31 On 16 October 1997 Mr Masters swore an affidavit which was read in these proceedings deposing as to the end of his employment with the first defendant in about August 1988, when the particular program "Page One" was no longer broadcast (sic). His responsibilities in the preparation of this program included writing the script, presentation and most of the editing of the program. Prior to its broadcast he had interviewed about 50 people and some others were interviewed by the third defendant, John Budd, and the fourth defendant, Jayne Anderson. Not all the material was used, about 10 to 15 people were interviewed on camera. The research prior to telecasting took several months and the deponent's sources of information included police officers, lawyers, persons accused of being members of crime syndicates, other journalists, politicians and public servants. The script was originally written as a "shooting script" then as a "rough cut" and then finally as a "fine cut". All these drafts were written by the deponent. As at December 1997 Mr Masters had no recollection of any of the circumstances under which the plaintiff's name was given to him. He says he had no idea that the name was incorrect at the time of broadcasting of the matter complained of. He did have extensive documents concerning research conducted prior to the broadcast which documents were left with the first defendant upon his departure.

32 As to the fifth defendant (Ree), it is contended by the plaintiff, in his particulars, that he (i) filmed interviews and reconstructed events in the preparation of the program for subsequent telecasting; (ii) filmed the second defendant (Masters) reporting to camera in the preparation of the program for subsequent broadcast; (iii) was aware the program would be broadcast in the Sydney Metropolitan area and most, if not all, State capitals; (iv) has made no apology to the plaintiff. Mr Ree has taken the position as to the disputed interrogatories as was taken by Mr Masters.

33 In his affidavit 16 December 1997 in support of the Notice of Motion Mr Rees, the cameraman, says that it was part of his duties for Channel Ten to film some of the video material used in the program. The parts of the program which he filmed included reconstructions of events reported on, interviews with participants, the second defendant reporting to camera and locations around Canberra. He was assigned his job by the ninth defendant (the Executive Producer), and performed the filming under the direction and supervision of the third defendant (Budd, the Producer), and the second defendant. He filmed the reconstruction scene being that part of the program where the plaintiff's name was mentioned and the tape recorder shown during that scene but took no part in the production of the voice-over accompanying the visual material as the sound component of the program was added at a later stage as were the sub-titles. He swears that at the time of shooting the visual material he was unaware of the plaintiff's name or that it would be used in the program. After he had completed filming the video material it was given to the sixth defendant (Middis, the Editor). He took no part in writing or otherwise determining the script of the matter and no part in the decision to publish it.

34 As to the sixth defendant Mr Mark Middis (the Editor), the plaintiff particularises that he constructed story segments in accordance with the script of the program in preparation for its broadcast, was aware that it would be broadcast and had made no apology to the plaintiff. Mr Middis answered his interrogatories as follows:

"1A. Was the sixth defendant a party to the preparation of the programme known as `Page One' on 24 April 1989?

1B. Yes.

2A. Was the sixth defendant in any way involved in the preparation of the said programme?

2B. Yes.

3A. If the answer to 1 or 2 above, or both is yes, in what capacity was the sixth defendant party to or otherwise involved in the preparation of the said program?

3B. As a video tape editor.

4A. If the answer to 1 or 2 above, or both is yes, state all facts relating to the sixth defendant's participation/involvement in the preparation of the said program.

4B. The sixth defendant constructed the story segments for the matter complained of from recorded video tapes in accordance with a script provided to him.

5A. Was the sixth defendant a party to the broadcast of the program known as `Page One' on 24 April 1989?

5B. The sixth defendant was not involved in any steps or decisions taken to transmit the prepared program.

6A. Was the sixth defendant in any way involved in the broadcast of the said program?

6B. The sixth defendant refers to 5B above".

35 In his affidavit sworn 15 October 1997 Mr Middis states that he was employed by the first defendant as a videotape editor as part of the duties of which he was given a script and recorded videotapes and he edited the tapes in accordance with the script. His job was to select segments of the visual material which matched the script and to lay a sound track over the pictures. He did not write the script nor did he have editorial control: his job was of a technical nature. In respect to the program the deponent states that he chose shots filmed by the cameraman and laid a sound track against the pictures in accordance with the script provided to him. He did these duties under the direction of the program's producer and was not involved in any decision to broadcast the program nor in any decision concerning the final version of it. He did not have any knowledge that the plaintiff's name was included in the matter complained of and had no reason to believe that the name was incorrect and says that it was not his role to check the correctness of the material broadcast. He was unaware that there were any legal problems with the program until he was served with the Amended Statement of Claim.

36 As to the eighth defendant Mr Murray, the in-house solicitor, the particulars assert that he (i) provided legal advice in respect of scripts and film of the program in preparation for that program's subsequent broadcast; (ii) was aware that the program would be broadcast in the Sydney metropolitan area, etc.; (iii) participated in the publishing of a correction; and, (iv) has made no apology to the plaintiff.

37 Mr Murray took the same objections to the interrogatories delivered to him by the plaintiff as did the other defendants to whom I have referred. However, by reason of the filing in Court of Mr Murray's Amended Defence to plead qualified privilege it is unarguable, one would think, that those interrogatories should be answered. Thus, if Mr Murray remains on the record as a party, he will be ordered to answer those interrogatories.

38 In his answers to interrogatories Mr Murray states as follows:

"1A. Was the eighth defendant a party to the preparation of the programme known as `Page One' on 24 April 1989?

1B. Yes.

2A. Was the eighth defendant in any way involved in the preparation of the said programme?

2B. Yes.

3A. if the answer to 1 or 2 above, or both is yes, in what capacity was the eighth defendant party or otherwise involved in the preparation of the said program?

3B. As in-house counsel for United Telecasters Sydney.

4A. If the answer to 1 or 2 above, or both is yes, state all facts relating to the eighth defendant's participation/involvement in the preparation of the said program.

4B. The eight defendant provided legal advice in relation to the preparation of the matter complained of. For the most part, such advice related to commercial aspects of the matter complained of, such as contracts entered for the purpose of preparing it. The eighth defendant also reviewed scripts and some of the film prepared for the purpose of the matter complained of and provided legal advice in relation to those scripts and that film. The film reviewed included that part of the film in which the plaintiff is referred to.

5A. Was the eighth defendant a party to the broadcast of the programme known as `Page One' on 24 April 1989?

5B. The eighth defendant was not involved in the transmission of the prepared programme, however, was involved in the preparation of the programme for subsequent broadcast as set out above.

6A. Was the eighth defendant in any way involved in the broadcast of the said program?

6B. The eighth defendant refers to 5B above".

39 In his affidavit sworn 16 October 1997 Mr Murray says that he was employed by the first defendant as its in-house counsel. He gave certain advice in relation to the program such advice relating to commercial aspects of it, such as contracts entered into for the purposes of preparing it. Advice was also given in relation to scripts and some of the film prepared for the purposes of the program. He did not participate in the preparation of the matter complained of other than in his capacity as a solicitor providing legal advice to the first defendant and its employees.

40 Mr Murray also goes on to say that at the time the program went to air he did have in his possession documents relating to it including file notes made in Canberra and in Sydney relating to discussions with Mr Masters, and other file notes made by him relating to the provision of legal advice in respect of the program. After he ceased his employment with the first defendant the deponent left his documents with the first defendant and he no longer has any. He then deposes to the best of his knowledge and belief, that the first defendant no longer has the documents described. I add that on 17 December 1997 Hugh Wily swore an affidavit stating that he was a liquidator of the first defendant and that in relation to any legal advice which was given by the eighth, Nick Murray, to the first defendant he, the liquidator, will at all times rely upon legal professional privilege in relation to Mr Murray's advice.

41 As to the third, John Budd, Executive Producer, he was served with the Amended Statement of Claim which issued on 9 February 1994, filed the Defences to which I have referred, withdrew them in June 1996 and the later Amended Statement of Claim came to his attention upon orders being made for substituted service.

42 In his affidavit sworn 16 October 1997 Mr Budd recites what he knows of the attempts to serve him with the appropriate process. He then goes on to say that he has no recollection of the part of the matter complained of which mentions the plaintiff nor recollection of the sources of information leading to the naming of the plaintiff; he does not recall any sources to whom he may have spoken or anything else about the preparation of that part of the matter complained of. He says his role in the preparation of the program included checking that the reporters and researchers were doing their jobs, ensuring material can be interpreted visually, dividing material prepared into sequences and organising interviews and filming of the material to be included in a story. He once held a substantial number of documents relevant to the preparation of the program but they have been destroyed. In particular he refers to documents that included his research book, his diary at the premises of the first defendant when his employment with that company ceased in August 1989. The diary recorded details of his involvement in the production of the program. He also stored audio tapes that related to and/or were used in the program together with two large manilla folders of documents: these were stored under his house until either 1991 or August 1994 at which times he moved house and discarded documents stored at home in order to reduce the amount of material to be moved. In 1991 he moved into his current residence and moved out temporarily in 1994 whilst it was being renovated; he cannot recall on which of these occasions he discarded the documents. The tapes included tapes obtained from sources including members of the police. The documents included transcript of relevant proceedings, records of information provided by sources and other information used to prepare the program the details of which Mr Budd cannot remember.

43 In relation to Mr Budd there is not pleaded in either of the Amended Statements of Claim anything other than that he was a publisher and no further and better particulars have been provided.

44 As to the ninth defendant, Paul Williams, he at the relevant time was acting as Executive Producer of the "Page One" program. He filed a Defence in the proceedings on 12 July 1996.

45 His role as Executive Producer involved his having overall editorial control and responsibility for the program, but did not involve having "hands on" production responsibility for each segment shown on the program. He was unaware of attempts of service upon him.

46 No further particulars have been provided in relation to Mr Williams.

47 An affidavit sworn 7 April 1997 by Mr J. E. Carmody deposes to the order for substituting service having been made by Justice Abadee on 21 March, that the Amended Statement of Claim was filed over two years prior to the date of swearing of the affidavit, that the new Amended Statement of Claim or the third one attached is in substance identical to the other Amended Statement of Claim, there are minor formalities changed only.

48 It is appropriate at this point to make some general observations. The litigation initiated between the plaintiff and the first defendant promptly after the broadcast of the matter complained of, while infected by some delay periods, was overall remarkably processed to the point that within 18 months that action was ready to be listed for trial.

49 There then occurred the unusual event of the first defendant going into liquidation requiring the plaintiff to find alternative defendants presumably with means. The two year delay is not explained at all. I find this quite extraordinary in the face of an application to dismiss for want of prosecution. After the expiry of that two year period the "rounding up" of other defendants progressed in fits and starts but certainly progressed.

50 A fundamentally very important factor in this matter is the nature of the defences filed: all that is in issue is whether the publication was defamatory and the quantum of damages if the publication is in fact found to be defamatory. This has been the position of all defendants who filed defences except Mr Murray the eighth defendant who, as I have said, filed in Court on 17 December 1997 an Amended Defence pleading qualified privilege. In regard to Mr Murray it seriously can be argued that the prosecution of proceedings against him would, in the end, be futile in that the proper maintenance of the claim for legal professional privilege will preclude the adducing of relevant evidence.

51 In respect of any question of "prejudice" to the defendants in the light of the issues it must almost be non-existent. If the issues are going to be otherwise then the prejudice will be the lapse of memory over a period of a decade and the disappearance of documents. As the pleadings presently stand, notwithstanding the position taken by Mr Murray, a view can be formed that any defence of qualified privilege is doomed to failure if it be the case as I understand it to be the case for the plaintiff though named and identified as the brother-in-law had nothing to do with the transaction being dealt with and a correction was issued.

52 It is inevitable therefore that the applicant/defendants will fail in their application to have the actions dismissed for want of prosecution or stayed. The more so should there not take place the drastic step of dismissing the case when whilst there has been unexplained delay, there is no evidence of prejudice in any real sense to the defendants in the light of the defences raised.

53 I will decline to make orders 1 and 2 in the Notice of Motion filed on 8 October 1997.

54 As to the SCR Pt 7 r 7 point I am not constrained to rule that service was irregular or a nullity. The rule provides for the exercise of a discretion. All the relevant defendants save for Mr Williams, have at one time or another filed defences. Mr Budd was granted leave to withdraw his Defence because he had not been served with the Amended Statement of Claim. He now has.

55 Not seeing any prejudice arising to any of these defendants by the mere confirmation of service upon them of the Amended Statements of Claim and in view of the considerations I have referred to in connection with dismissal for want of prosecution, I will decline to make order 3 in the Notice of Motion.

56 The fourth order sought is that Mr Masters have leave to withdraw his appearance and Defence under SCR Pt 21 rr 1 and 3. This was a puzzling application and I assume it to be founded upon what was alleged in respect of the relief sought in order 2 namely the irregularity and service of the Amended Statement of Claim. I am not persuaded by that or any other basis, indeed no other basis was put to me, apart from the general concept of prejudice, to make this order and I decline to do so. ** Mr Blackburn of counsel for Mr Masters was at pains to point out how disadvantaged his client is in the context of a defence of qualified privilege. No one has pleaded a defence of qualified privilege ever in the course of this litigation until Mr Murray was granted leave to file his in Court during the hearing of these applications.

57 The fifth order sought in the Notice of Motion is that the proceedings be summarily dismissed as against the fifth defendant, Mr Ree (the cameraman), the sixth defendant, Mr Middis (Editor), and the eighth defendant, Mr Murray (the In-house Solicitor).

58 At the outset it must be stated that despite a disclaimer made by Mr Neil Q.C. for the plaintiff to the effect that this was not a case of joint tortfeasors, in the light of the way it has been pleaded against the respective defendants no other approach than that of joint tortfeasors can be permitted. If I understood Mr Neil's disclaimer correctly, it could only go to alleging separate acts of publication against the respective defendants. The plaintiff will have to seek leave of the Court to amend to do that.

59 In Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331 at 364 Isaacs J said:

In Parkes v. Prescott (1869) L.R., 4 Ex. 169, at p. 173 Giffard Q.C. quotes from the second edition of Starkie: "All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected."

In R. v. Paine (1696) 5 Mod. 163, at p. 167 it is held "If one repeat and another write a libel, and a third approve what is wrote, they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty: so that murdering a man's reputation by a scandalous libel may be compared to murdering his person; for if several are assisting and encouraging a man in the act, though the stroke was given by one, yet all are guilty of homicide." A little later, in R. v. Drake (1706) Holt 423, that law was reaffirmed. In The Queen v. Cooper [1846] EngR 374; (1846) 8 Q.B. 533, at p. 536 Lord Denman C.J. said: "If a man request another generally to write a libel, he must be answerable for any libel written in pursuance of his request: he contributes to a misdemeanour and is therefore responsible as a principal."

60 The foundation of the plaintiff's case against the defendants is not that they committed several tortious acts but contributed merely to a common damnium. They were accessories in the one injuria namely the publication of defamatory imputations arising from the program telecast by the first defendant. It is argued that it must follow for the plaintiff's to succeed in respect of any one of the defendants, he must show that a claim can be made conformably with the principles as to joint tortfeasors.

61 In Thompson v Australian Capital Television Pty Limited [1996] HCA 38; (1996) 186 CLR 574 at 580-581 Brennan CJ, Dawson and Toohey J said:

"We have no doubt that Channel 9 and Channel 7 were joint tortfeasors. The difference between joint tortfeasors and several tortfeasors is that the former are responsible for the same tort whereas the latter are responsible only for the same damage Fleming, Law of Torts, 8th ed (1992), p 255.. As was said in The "Koursk" [1924] P 140 at 159-160., for there to be joint tortfeasors "there must be a concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage". Principal and agent may be joint tortfeasors where the agent commits a tort on behalf of the principal, as master and servant may be where the servant commits a tort in the course of employment. Persons who breach a joint duty may also be joint tortfeasors. Otherwise, to constitute joint tortfeasors two or more persons must act in concert in committing the tort".

62 It is not alleged in this case that a tort was committed by Middis and Ree for which tort the first defendant is liable. This case cannot be understood, it is argued, as one of joint liability arising because of the liability of the principal for the agents tort. Thus, for Middis and Ree to be liable for the tort alleged to have been committed by United Telecasters they must have acted "in concert" with the first defendant in committing the tort.

63 It is not merely "participation" or "connection" or "involvement" in the commission of a tort which renders a person liable as a joint tortfeasor. It is acting in concert or concurrence to achieve a common end which is required. The emphasis on the concerted nature of the joint activity is emphasised in the passage cited from Bloch above.

64 Other cases have dealt with the liability of an editor, printer and publisher of a newspaper. The editor and publisher obviously know what is contained in the libel and are clearly in a common enterprise with the publisher to publish it. It is clear from what was said in Thompson v Australian Capital Television (supra) at 586-7 and by the Court of Appeal in McPhersons Limited v Hickey (1995) ATR 81-345 that printers were traditionally encompassed in the concerted action because they were considered to have known the contents of the libel, it being fully composed at the time that the "printer clamped down the press". In each of these cases, the libel was formed at the stage of the tortfeasors involvement in it. However, it would be absurd, it is argued, to suggest that the person who supplied alloy to the printer to form the typeface could be regarded as having acted in concert with the printer, unless there was evidence that that person intentionally supplied the alloy with the common design of publishing the libel (see Gatley, Libel & Slander, 8th ed. para 237).

65 With respect to the fifth defendant, Mr Ree, the cameraman, he was employed by the first defendant at the relevant. He filmed some of the video material used in the program; his particular involvement was to film the reconstruction scene and the tape recorder shown during the scene. He had no involvement in the production of the voice over accompanying the visual material and did not know the plaintiff's name at the time he shot the visual material or that it would be used in the program. He simply filmed the material and presented it to the sixth defendant for editing. He had no part in writing or determining the script or the decision to publish. It is said that there is no evidence at all that Mr Ree acted in concert with United Telecasters or anybody else in the publication of the defamatory material. He only performed an act, namely took the shots and the film. It is seriously suggested that he is no different to that of the man who presses the button that commences the printing presses to run or to the supplier of ink or paper to the newspaper.

66 I am not persuaded by Mr Blackburn's submissions on this application for summary dismissal under Pt 13 r 5 that the structural defect in the plaintiff's claim can now be said to be clearly established. The argument presupposes or postulates that in some way Mr Ree was operating in a vacuum and that cannot be right. As Neil Q.C. said, this is a matter for the trial.

67 In the case of the video tape editor Mr Middis, the sixth defendant, his role as revealed in his evidence is that he selected shots filmed by the cameraman and laid soundtrack against the pictures in accordance with the script provided to him. He said that he did not participate in the writing of the script and had no editorial control. He did these things under the direction of the producer of the program and was not involved in any decision to broadcast it. It is again suggested that there is no evidence that Mr Middis acted in concert with anyone else. Again, I am not so persuaded for the purposes of this summary dismissal application: it will have to be a matter for trial.

68 The eighth defendant, Mr Murray, was the in-house solicitor. He gave advice relating to commercial aspects of the program such as contracts entered into for the purposes of preparing it. He gave advice in relation to scripts and some of the film prepared for the purposes of the matter complained of. His only involvement was as a solicitor providing legal advice to the first defendant and its employees. As I have earlier indicated it is clear that privilege will not be waived in relation to the advice given by the solicitor to the client. It will not be possible for the plaintiff to prove what advice the solicitor gave. The mere giving of advice, it is argued, cannot constitute acting in concert to be a joint tortfeasor. The advice that may have been given may well have been not to publish. The advice however will never be known. This is the first basis on which it is be argued that the action against the eighth defendant should be summarily dismissed, namely, "futility".

69 The second basis is really a matter of policy.

70 In Rondel v Worsley [1969] 1 AC 191 at 227 Lord Reid said:

"Every counsel has a duty to his client fearlessly to raise every issue, advance every argument and ask every question, however distasteful, which he thinks will help his client's case. But as an officer of the Court concerned in the administration of justice, he has an overriding duty to the Court, to the standards of his profession, and to the public which may and often does lead to a conflict with his client's wishes or what the client thinks are his personal interests".

71 It is submitted that what fell from his Lordship is referrable to solicitors engaged in giving legal advice to their clients although the words were specifically directed to advocates.

72 No inference can or will be drawn at the trial of this matter that Mr Murray advised his client in bad faith or in breach of any duty. All that will be able to be inferred is that Mr Murray gave advice in the usual way of a legal practitioner doing the best he can and in conformity with his retainer and his wider obligations to the Court in the community. It is stressed that the most that could be inferred from the fact of Mr Murray giving advice to his client is that he gave some advice. The evidence does not establish that in any way did he authorise or make a decision on the publication of the matter complained of. He simply gave advice. In this context a passage from the judgment of Northrop J in O'Donovan v Forsyth (1987) 76 ALR 97 was cited. The case concerned the criminal liability of a Queen's Counsel who had given certain advice in relation to a tax minimisation scheme. His Honour said at 117:

"This appeal and cross-appeal involve important questions as to the liability of a barrister when giving advice in his professional capacity as a barrister. It is not unusual for a barrister to be briefed to advise on questions which might involve the client engaging in conduct which possibly could constitute a crime. The primary submission of counsel for Forsyth was that at all times he was acting in his professional capacity as a leading barrister in taxation law and that advice so given could not constitute evidence of Forsyth having committed any of the crimes with which he is charged. They referred to what was said by Street CJ, with whom Gordon and Ferguson JJ agreed in R v Tighe and Maher (1926) 26 SR (NSW) 94 at 108-9:

"It is expected of course of every solicitor that he shall act up to proper standards of conduct, that he shall give his clients sound advice to the best of his ability, and that he shall refrain from doing anything likely to mislead a court of justice; but, in the course of his practice he may be called upon to advise and to act for all manner of clients, good, bad or indifferent, honest or dishonest, and he is not called upon to sit in judgment beforehand upon his client's conduct, nor, because he does his best for him as a solicitor within proper limits, is he to be charged with being associated with him in any improper way. In acting for a client, a solicitor is necessarily associated with him, and is compelled to some extent to appear as if acting in combination with him. So he may be, but combination is one thing and improper combination, amounting to a conspiracy to commit a crime or a civil wrong, is another thing. An uninstructed jury may easily fail to draw the necessary distinction between such combined action as may properly and necessarily be involved in the relation of solicitor and client, and such acts on the part of a solicitor, over and above what is required of him by his duty as a solicitor, as may properly give rise to an inference of an improper combination. I think, therefore, that it may be useful to point out the importance, in cases where a solicitor is charged with entering into an agreement with his client which amounts to a criminal conspiracy, of seeing that the jury are properly instructed as to a solicitor's duty to his client, and that it is made plain to them that, before a solicitor can be convicted of conspiring with his client to commit a wrong, it must be proved that he did things in combination with him, over and above what his duty as a solicitor required of him, which lead irresistibly and conclusively to an inference of guilt".

73 It is submitted that the passage just cited applies with equal force to a solicitor who is alleged to have been a joint tortfeasor because of the provision of advice in relation to the commission of a tort. Again, it is emphasised that the highest inference that will be drawn at the trial of this matter is that Mr Murray gave advice about the matter complained of which was entirely within and consistent with his professional duty. The advice will not be the subject of evidence. It will not be possible to draw an inference that he improperly urged the publication of the program. No inference will be able to be drawn beyond the inference that he gave advice in the usual manner.

74 It is thus submitted that in no circumstances do principal and policy require a legal practitioner acting within his duty to be liable in these circumstances. To hold otherwise, it is submitted, may lead to drastic consequences not only for the civil law but also for the criminal law. The result could be that a person giving honest advice to the best of that person's ability to the lawfulness of certain actions may be charged with aiding and abetting. The possibility that a legal practitioner giving routine advice as to whether or not a matter was defamatory in accordance with that practitioner's duty, could routinely be liable as a joint tortfeasor if the advice is wrong, is what is described as a "drastic attack" on the integrity of legal practitioners. The facile availability of liability as a joint tortfeasors in these circumstances, it is submitted, directly cuts across the duties that legal practitioners have to their clients, the courts and the public as formulated by Lord Reid (supra).

75 It is unnecessary on this application to attempt to delineate the precise point at which a legal practitioner could be said to be an accessory to the commission of a tort or a crime. It is sufficient to say that Mr Murray did his duty in the ordinary way and in those circumstances, it is submitted, that a legal practitioner is incapable of being characterised as an accessory of the subsequent commission of a civil or criminal wrong.

76 Mr Blackburn was good enough to provide me with publications that expressed conformable views by commentators of high authority: G. L. Davis Q.C. "Revenue Offences Generally: Can the Professional Adviser be a Party or a Conspirator" (Queensland Law Society Journal June 1998); R. V. Gyles Q.C. "Criminal Liability of Professional Advisers" (Paper presented to the Australian Bar Association Bicentennial Conference 13 July 1988 published in Taxation in Australia, February 1989); McHugh, J "Jeopardy of Lawyers and Accountants in Acting on Commercial Transactions" (Taxation in Australia, April 1988 at 542). McHugh J considered that a person "may" be liable as an aider and abettor if that person's conduct is "knowingly directed to the purpose which the principal has pursued and is likely to bring about or render more likely the attainment of that purpose". He referred to the "concept of encouragement". Davies Q.C. in his paper said that the "encouragement" referred to by McHugh J was "intentional encouragement beyond the performance of (the practitioner's) duty to his client to give advice on the legality of (a particular course of conduct) and possible alternative proposals". Gyles Q.C. suggested that if mere objective encouragement by the giving of bona fide advice made one an aider and abettor this would have "extraordinary consequences". It would mean that "no citizen could obtain guidance from those qualified to give it as to the lawfulness of a proposed course of action". He also said that a "lawyer should be able to express his bona fide view as to the lawfulness of the proposed action without fear of criminal consequences if it be incorrect". There is no reason not to apply that principle to the giving of advice in civil matters.

77 These submissions do, of course, raise profoundly important issues of the policy of the law and public policy. I am persuaded that this second basis is available summarily to dismiss the plaintiff's claim against the eighth defendant as I am satisfied as to the first basis, namely futility and I will order accordingly.

78 The plaintiff however has succeeded predominantly and costs will be awarded accordingly.

79 The formal orders are:

1. I decline orders 1, 2, 3 and 4 sought in the Notice of Motion filed on 8 October 1997.

2. I confirm service on the second defendant (Masters), the third defendant (Budd) and the ninth defendant (Williams).

3. I order that the proceedings against the eighth defendant (Murray) be summarily dismissed. I otherwise decline to make the orders as sought in paragraph 5 of the Notice of Motion.

4. The second, third, fifth, sixth and ninth defendants are to pay the plaintiff's costs of this application.

5. The plaintiff is to pay the costs of the eighth defendant of the application and of the proceedings.

6. Liberty to restore to the Defamation List on 3 day's notice.

7. The exhibits are to be returned.

LAST UPDATED: 12/02/1999