CATCHWORDS Service out of the jurisdiction - one defendant out of jurisdiction - whether shown to be joint tortfeasor with defendants in jurisdiction. Service out of the jurisdiction - setting aside writ - stay of proceedings - which is appropriate where case not within s.11 of Service and Execution of Process Act 1901. VICTORIAN BROADCASTING NETWORK LIMITED v. EDWARD GOUGH WHITLAM F.C. No. 9 of 1979. CORAM: Blackburn, Franki and Keely JJ. CANBERRA 2 April 1980. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY F.C. No. 9 of 1979 DISTRICT REGISTRY Nee Ned Na ad Nae Ne Se GENERAL DIVISION ON APPEAL from the Supreme Court of the Australian Capital Territory S.C. No. 482 of 1978 BCTWEEN: VICTORIAN BROADCASTING NETWORK LIMITED Appellant (Fifthnamed Defendant) AND: EDWARD GOUGH WHITLAM Respondent (Plaintiff) ORDER JUDGES MAKING ORDER: Blackburn, Franki and Keely JJ. DATE OF ORDER: 2 April 1980 WHERE MADE: Canberra THE COURT ORDERS THAT: 1. The appellant have leave to apply within 21 days to amend its application by applying for a stay of proceedings. 2. The further hearing of the appeal be adjourned to a date to be fixed. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) ) No. F.C. 9 of 1979 ) ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY S.C. No. 482 of 1978 BETWEEN: VICTORIAN BROADCASTING NETWORK LIMITED Appellant (Fifthnamed Defendant) AND: EDWARD GOUGH WHITLAM Respondent (Plaintiff) CORAM: BLACKBURN, FRANKI and KEELY JJ. 2 APRIL 1980 REASONS FOR JUDGMENT This 1s an appeal against an interlocutory decision of a judge of the Supreme Court of the Australian Capital Territory refusing to set aside a writ and the service of a writ. The respondent, Mr Whitlam, commenced proceedings in the Supreme Court of the Australian Capital Territory against fourteen defendants and the statement of claim was endorsed "The Plaintiff's Claim is For damages for libel for the publication of matter on the 5th December, 1977 contained in an interview with Mrs Leah Lynch within a programme known as 'Willesee at 7'". The appellant and the fifth defendant, the Victorian Broadcasting Network Limited, proceeded by way of notice of motion to have the writ of summons set aside in so far as it referred to the appellant and also to have the service of it set aside in relation to the appellant. Affidavits were filed which alleged that the appellant was incorporated in Victoria and was not and never had been registered in the Australian Capital Territory nor did it carry on business nor have a place of business in the Australian Capital Territory and that none of its telecasts were capable of being received within the Australian Capital Territory. There 1s no suggestion that those facts are otherwise than as set out in the affidavits. When the application was first before the learned judge for hearing, the plaintiff sought an adjournment and filed two affidavits. Subsequently the following admissions (inter alia) were made by the appellant: "1. Prior to and on 5 December 1977 Trans Media Pty. Ltd., (the 14th defendant) produced a series of television programmes known as 'Willesee at Seven'. Z. Prior to and on 5 December 1977 there existed an arrangement between the applicant and the 14th defendant whereby, in consideration of a price to be paid by the applicant to the 14th Defendant, the 14th defendant permitted the applicant to broadcast within its viewing area those programmes. 3. Pursuant to that arrangement, between 7 p.m. and 7.30 p.m. on 5 December, 1977, the applicant broadcast in its viewing area the programme 'Willesee at Seven' as produced by the 14th defendant. 4, That on 5 December 1977 between 7 p.m. and 7.30 p.m. station CTC 7 broadcast television programmes in the Australian Capital Territory, and that it was operated by the first named defendant, Canberra Television Limited. 5. That on S December 1977 between 7 p.m. and 7.30 p.m. Victorian Broadcasting' Network Limited, the fifth named defendant, took the programme which is the subject of this action, from station HSV 7 on relay. 6. That on 5 December 1977 between 7 p.m. and 7.30 p.m. HSV 7 broadcast television programmes in Victoria and that it was operated by Herald- Sun TV Pty. Limited the twelfth named defendant. 7. That on 5 December 1977 between 7 p.m. and 7.30 p.m. ATN- 7 broadcast television programmes in New South Wales and that 1t was operated by Amalgamated Television Services Pty. Limited, the ninth named defendant." Before affidavits were filed on behalf of the respondent his solicitors wrote to the solicitors for the appellant asking for the following admissions: "I. That your client televised the programme 'Willesee at Seven' on or about 5th December 1977 between 7.00 and 7.30 p.m. containing the segment transcribed in Annexure 'A' hereto. ?. That the same was shown by arrangement between Trans Media Pty. Ltd. and the Sth defendant. 3. That the Sth defendant knew that there was a Similar arrangement for showing the said segment throughout Australia. 4. That there was an arrangement between Trans Media Pty. Ltd. and CTC-7 to show the said segment in the A.C.T. as well as in other parts of Australia." The solicitors for the appellant replied as follows. "), We confirm that our client televised the programme 'Willesee at Seven' on 5th December, 1977 between approximately 7 p.m. and 7.30 p.m. As the programme was taken on direct relay from HSV 7 Melbourne our client did not retain a record of the material broadcast and is therefore not able to admit that the programme broadcast on that date contained the material you submitted to us. 2. We refer to our above reply. We have sought from our client copies of the documents constituting the contract pursuant to which our client broadcasts the programme 'Willesee at Seven' and will supply a copy to you as soon as possible. 3. Our client was not a party to any arrangement which may have been made between Trans Media Pty. Limited and any other party and is therefore unable to make the requested admission. 4. Our client was not a party to any arrangement which may have been made between Trans Media Pty. Limited and CTC 7 and is therefore unable to make the requested admission." There was no evidence before the learned judge of the details of the contract pursuant to which the appellant telecast the relevant programme nor of any contract or arrangement between Trans Media Pty. Limited (the 14th defendant) and any of the other defendants relating to the circumstances giving rise to the production of the programme or under which any of the defendants were entitled to telecast it. The letter to which we have referred from the solicitors for the respondent commenced with the following paragraph: "This matter is adjourned to 15 July 1978. We stated we wished to file affidavits to show that the cause of action in the endorsement being that your client was a joint tortfeasor (inter alia) with Transmedia Pty. Ltd. in publishing the "Mrs Lynch interviewed' segment in the A.C.T. and elsewhere in Australia." Subsequently the respondent filed two affidavits to which the learned judge referred. The appeal to this Court was corducted by the respondent upon the basis that (a) the action was with respect to publication in the Australian Capital Territory, (b) no publication by the appellant itself within the Australian Capital Territory was alleged and (c) the appellant was ajoint tortfeasor being engaged in a joint enterprise or common venture with Trans Media Pty. Limited and others for the purposes of publication throughout Australia of material produced by that company. The learned judge drew several inferences and in particular he said that part of a "common end" in respect of which there might be inferred to be a concerted action, was the publication of the programme at the same time 1n Canberra as elsewhere. He dismissed the application saying: "Having regard to what was proven and can be inferred, in my opinion, sufficient has been shown to establish a prima facie case on the evidence as it now stands, that the applicant and, for example, the 9th, 12th and 14th, and Ist defendants were or might have been engaged in a concerted action to the common end of publishing by television the material in Annexure 'A' at the time and date mentioned above in the Australian Capital Territory; though we are concerned here only with the applicant and the first- named defendant." The learned judge accepted that it could be proved, at least for the purpose of the application before him, inter alia, that: "Prior to and on 4 December 1977 there existed an arrangement between the applicant defendant and the l4th defendant, whereby in consideration of a price to be paid by the applicant to the 14th defendant, the 14th defendant permitted the applicant to broadcast within its viewing area those programmes." The writ of summons had been served on the appellant under the provisions of the Service and Execution of Process Act 1901 ("the Act"). The' three sections to which our attention was specifically directed were ss.4, 11 and 13. It was common ground that no statement of claim had been served (nor apparently had it been prepared at the time of the appeal), no appearance or conditional appearance had been entered by the appellant and no application had been made for liberty to proceed under the provisions of s.11(1) of the Act. Section 11(1)(d) of the Act provides that liberty to proceed may be granted where "...it is made to appear to the Court .+. thet any act or thing ... for which damages are sought to be recovered, was done ... within ..." that part of the Commonwealth in which the writ was issued. The appeal proceeded before us on the basis that the only ground upon which the appellant could have sought liberty to proceed was that provided in s.11(1)(d) of the Act and that no application to set aside the writ of summons or its service could succeed if the appellant had done within the Australian Capital Territory an act or thing for which damages were sought to be recovered within the Australian Capital Territory. appeal are: In our opinion the two questions which arise in this Is there any evidence that the appellant has done any act or thing within the Australian Capital Territory for which damages are sought to be recovered, or that it has been a joint tortfeasor with another who has done any such act or thing? If not, can the writ of summons be set aside in so far as it refers to the appellant or can the service of that writ of summons upon the appellant be set aside? Whilst il was admitted that the 14th defendant permitted the appellant to telecast within its viewing area the relevant programme, there 1s no evidence concerning any relationship, contract or arrangement between any of the other defendants and the 14th defendant or between the fifth defendant and any of the other defendants nor indeed is there any precise evidence of the relationship arrangement or contract between the 14th defendant and the appellant setting out the terms and conditions under which the programme was produced or under which it was telecast. The learned judge was prepared to draw certain inferences and ultimately to conclude in the passage we have set out that the appellant, at least certain of the other defendants and the first defendant "were or might have becn engaged in a concerted action to the common end of publishing by television" the relevant programme. In our opinion, in such an application as was before the learned judge, the view expressed by Dean J. in Dewhurst § Co. Pty. Ltd. v. Cawrse (1960) V.R. 278 was applicable. Dean J. held that in an application to stay all further proceedings 1n an action where the writ was served under the Act the onus lay upon the plaintiff in the action to satisfy the words of s.11(1), that it must be made to appear to the Court from which the writ was issued that the facts necessary to jurisdiction exist. In that case Dean J. also considered the degree of proof and at pp.281-2 after citing various authorities said: "The result appears to be that when defendant moves to stay proceedings or to set aside an order, the Court must, upon the whole of the material, be satisfied that plaintiff has a strong arguable case that the ground relied upon is made out, but he does not have to prove it as fully as a disputed issue would have to be established at a trial." The respondent argued that the appellant was a joint tortfeasor. In a broad sense this requires "a joint purpose" or "concerted action to a common end" or a conspiracy where all conspirators are active in the furtherance of the wrong. Here what is relied on is publication in the Australian Capital Territory. We do not consider that any evidence has been adduced tending to show that the appellant had any concerted design or joint purpose to telecast in the Australian Capital Territory the programme of which complaint is made or indeed that it was a party to any relevant concerted design or joint purpose which would make it a joint tortfeasor in relation to the publication of that programme in the Australian Capital Territory. Upon that basis we do not consider that the appellant has done any act or thing within the Australian t Capital Territory for which damages are sought to be recovered. We now pass to the second question and we note that the notice of motion before the learned judge only sought that the writ of summons and the service of it be set aside as against the appellant but no order was sought that the action be stayed in relation to the appellant. The appeal before us proceeded on the same basis. No point was made in argument as to any difference between the jurisdiction to set aside the writ or the service of the writ and the jurisdiction to stay the proceedings. This raises a difficulty, because although we consider that sufficient has been made out for a stay of the proceedings, we are not prepared to make either of the orders sought. We were referred to Luke v. Mayoh (1921) 29 C.L.R. 435 and senior counsel for the respondent reminded us that this authority was binding upon us. In those proceedings leave was sought to issue a writ for service out of the State of South Australia under the provisions of a South Australian law and a fiat for the issue of such writ was issued. The writ was then served on the defendant in New South Wales who entered a conditional appearance. A single judge then set aside the fiat and the writ and the service thereof and an appeal to the Full Court of South Australia affirmed that decision. On an appeal to the High Court Knox C.J., Rich and Starke JJ. allowed the appeal upon the basis that the writ might have been served under the Act and said at p.439 "If the defendant does not appear to the writ and the plaintiff applies under s.l1 for leave to proceed in the action, then and not till then, 1t becomes necessary for the Court to determine whether the case is one in which leave to proceed can be given." It might be thought to be a proper inference from this dictum that a writ cannot be set aside only on the ground that it does not come into any of the categories prescribed by s.11. But Luke v. Mayoh was the subject of some comment in the High Court in Tallerman & Co. Pty. Ltd. v. Nathan's Merchandise (Victoria) Pty. Ltd. (1957) 98 C.L.R. 93. There Dixon C.J. and Fullagar J. at pp. 107-108 said: "In New South Wales provision for service out of the jurisdiction of a Supreme Court writ in certain limited classes of case is made by s.18 of the Common Law Procedure Act 1899, and the Service and 10. Execution of Process Act 1901-1953 (Cth.) makes general provision for the service in any State of the process of the courts of any other state. If the matter had been free of authority, one would have thought that the power given in general terms by s.4 of that Act ought to be regarded as limited by implication to the classes of case specified in s.1l. Great difficulty, however, is occasioned by the decision of three justices of this Court in Luke v. Mayoh (1921) 29 C.L.R. 435, in which it is important to note that a conditional appearance had been entered by the defendant. A practice, which has much to recommend it, but is difficult to reconcile with Luke v. Mayoh appears to have become established in New South Wales by Ex parte Walker; Re Caldwell's Wanes Ltd. (1931) 31 S.R. (N.S.W.) 494, at pp. 503, 504; 48 W.N. 189, at p.192; see also Blunt vy. Collingwood Pty. Tin Mining Co., N.L. (1903) 20 W.N. (N-S.W.) 158; Clarke §& Co. Pty. Ltd. v. Kerin (1926) V.L.R. 559; Braemar Woolien Mills Co-Op. Ltd. v. Poinsettia Hosier Niles Pty. Ltd. (1933) Si WN. NSW "65. Re Fowles (1936) V.L.R. 96 (in which an escape was found from the dilemma which Luke v. Mayoh might be thought to pose) and Friedman v. Kemp's Nurseries Ltd. (1954) V.L.R. 336. That practice is to follow the same course as that provided for cases where a writ has been served out of the jurisdiction under a State law: see General Rules of the Supreme Court of New South Wales 1952, Order-IxX, r.6, and cf. Rules of the Supreme Court of Victoria, Order XIT, r.30; Annual Practice 1956, pp.144, 145. The defendant enters a conditional appearance, objecting to the jurisdiction, and then applies by summons to have the writ set aside. If the defendant establishes that the case does not fall within any of the classes specified in s.11 of the Service'and Execution of Process Act, an order 1s made setting aside the writ. (Strictly speaking, it would seem that the service of the writ, and not the writ itself, should be set aside.) If it appears that the case falls within one of the classes mentioned in s.11, the appearance becomes unconditional. ll. It may well be that Luke v. Mayoh will some day have to be reconsidered, but, by reason of what actually happened in this case on the defendant's summons, it is unnecessary to pursue this matter further. By an order made by the Prothonotary by consent on 5th March 1953 the summons was dismissed." See also Taylor J. at pp.142-143. It is 1mportant to notice that this passage cannot be regarded as authoritative on the question whether the Court's power 1s to set aside the writ or merely to stay the action - which is the question before us now. Their Honours referred to the "practice, which has much to recommend it" and later described it as being"to follow the same course as that provided for cases where a writ has been served out of the jurisdiction under a State Jaw"! - that is to say, to move the Court either upon a conditional appearance, or without appearance if that is permitted by Rules of Court. Those provisions in the Rules of Supreme Courts appear to be designed to provide a procedure for the case where a defendant may allege a breach of the Court's Rules as to service out of the jurisdiction. What their Honours were saying was that this procedure can conveniently be adopted, and has been adopted, in cases where the defendant alleges that on the writ as issued and served, leave to proceed would not be granted under s.11 of the Act. But their Honours, as we think with respect, were not concerned with the distinction between setting aside the writ and staying the action, as is shown by the authorities they cited. In all of them, service was effected under the Act. In ex parte Walker; re Caldwell's 12. Wanes Ltd. the Court expressed doubt whether the defendant was entitled to have the writ set aside, but a stay was granted after amendment of the application. In Blunt v. Collingwood Pty. Tin Mining Co. N.L. an application to set aside the writ was granted, but 1t was a decision before Luke v. Mayoh. In Clarke & Co. Pty. Ltd. v. Kerin the application was to set aside the writ and the service of the writ, and it was refused on the authority of Luke v. Mayoh. In Braemar Woollen Mills Co-Op Ltd. v. Poinsettia Hosiery Pty. Ltd. an application to set aside the writ was refused, but a stay was granted after amendment. In re Fowles the application, which was granted, was to set aside, under s.11(2), the order giving leave to proceed. In Friedman v. Kemp's Nurseries Ltd. the application was in the alternative; the Court followed Luke v. Mayoh and Clarke § Co. Pty. Ltd. v. Kerin in refusing to set the writ aside, and the application for a stay was refused on substantive discretionary grounds. We turn, therefore, to decisions given since the Taillerman case. In W.A.. Dewhurst § Co. Pty. Ltd. v. Cawrse,to which we have already referred, the application was for a stay, and it was granted. In Gilchrist v. Dean (1960) V.R. 266, Sholl J. carefully distinguished the qucstion of service out of the jurisdiction under Rules of Court, from service under the Service and Execution of Process Act. We respectfully consider that the following passage at pp. 272-273 in the judgment of Sholl J., when he was dealing with the question of the service of a third party notice in another 13. State, correctly expresses the law in relation to the Act: "Therefore, it may, according to existing authority, validly be served in Queensland, and the service cannot be set aside, even 1f the Victorian Court would later, under s.1l1, refuse the defendant leave to proceed in the event of the third party not appearing; see Luke v. Mayoh (1921), 29 C.L.R. 435; Clarke §& Co. Pty. Ltd. v. Kerin, (1926) V.L.R. 559. The theory is that if the third party appears, he submits to the jurisdiction, and no question of jurisdiction can thereafter arise; 1f the third party does not appear, the defendant must bring his claim within s.11, or otherwise he cannot proceed. This may place the third party, if he does not appear, in a difficult position, but he may, if necessary, apply under s.11(2) to set aside any order actually made and giving his opponent leave to proceed; see Re Fowles, (1936) V.L.R. 96; or he may without appearing apply on motion to stay the proceedings on the ground that the case does not fall within any of the paragraphs of s.11, though he may then find his application adjourned to the trial if the question of jurisdiction or no jurisdiction depends on disputed facts; see Ex parte Walker (1931), 31 S.R. (N.S.W.) 494; Friedman v. Kemp's Nursuries Ltd., (1954) V.L.R. 336. There appears to be some doubt whether the High Court would now adhere to the doctrine of Luke v. Mayoh; see Tallerman § Co. Pty. Ltd. v. Nathan's Merchandise (Victoria) Pty. Ltd. (1957), 98 C.L.R. 93, at pp.107-8, where Dixon C.J., and Fullagar J., used language which may perhaps encourage the third party in this case to challenge Luke v. Mayoh by an application to set aside service of the third-party notice upon him." It should be noted that in the Australian Capital Territory there 1s no provision for service in Australia out of the jurisdiction otherwise than under the Act. In State of Victoria v. Hansen (1960) V.R. 582, the writ was served under the Act, and the defendants applied in the alternative to set aside the writ and 14, service, or for a stay. Adam J. treated the application as for a stay, following Friedman _v. Kemp's Nurseries Pty. Ltd. (see p.584, line 55); he refused the application on substantive grounds. On the procedural question which now concerns this Court, the head- note to State of Victoria v. Hansen is decidedly misleading. In our opinion the practice which seems to be most widely adopted and which docs not appear to be contrary to any views expressed by judges of the High Court is that in an appropriate case the Court may stay proceedings which have been served under the Act where the proceedings do not fall within any of the paragraphs of s.11, but it appears that it may not set aside the writ or the service of the writ. ¢ We think that the practice of granting a stay is not in conflict with Luke v. Mayoh, and is in accordance with the great weight of practice in New South Wales and Victoria; moreover, it is justifiable as resting on inherent jurisdiction, as was pointed out in ex parte Walker (supra, at p.503), and the Supreme Court of the Australian Capital Territory has this inherent jurisdiction under s.ll(a) of the Australian Capital Territory Supreme Court Act 1933. In our opinion this is an appropriate case for a stay. We would give the appellant leave if 1t so desires to apply within 21 days of today to amend its application by asking for a stay of proceedings. We adjourn the further hearing of the appeal to a date to be fixed. , rr rertirv 7 lrveced + "nS . . Franke Y keer -jate a> frvten ce bos eat ARE 7, ° - ~ hib2- iate ya A