New South Wales District Court CITATION: Hennessy v Lynch [2006] NSWDC 26 HEARING DATE(S): 18/9/06 JUDGMENT DATE: 27 September 2006 JUDGMENT OF: Gibson DCJ DECISION: The provisions of the Defamation Act 1974 (NSW) apply to all causes of action pleaded in these proceedings. CATCHWORDS: PRACTICE & PROCEDURE - DEFAMATION - Proceedings arising from three publications where two causes of action accrued under the Defamation Act 1974 (NSW) and one under the Defamation Act 2005 (NSW) - interpretation of Defamation Act 2005 Schedule 4 Clause 2 - whether the Defamation Act 1974 (NSW) or the Defamation Act 2005 (NSW) should apply to all actions where there was publication of substantially the same matter on separate occasions. LEGISLATION CITED: Defamation Act 1974 (NSW): s7a, 9, Defamation Act 2005 (NSW): s8, Sch 4 cl 2 CASES CITED: Habib v Nationwide News [2006] NSWCA 14 PARTIES: Paul James Hennessy (plaintiff), John Lynch (defendant) FILE NUMBER(S): 2288/06 COUNSEL: J Young (Plaintiff) R Weaver (Defendant) SOLICITORS: Shaw McDonald Higgins & Higgins JUDGMENT 1 The plaintiff by way of Ordinary Statement of Claim filed on 26 May 2006 commenced proceedings for defamation for three oral publications. The text of each of the statements made by the defendant was set out in the Statement of Claim as follows: (a) On or about 14 October 2002 the defendant telephoned an employee of the plaintiff, Mr Hasler, and said words to the effect "Hennessy has been made bankrupt and he has not been able to get credit at some business houses in Bathurst … you have no ethics working for Hennessy and you would work for Osama Bin Laden". (b) On or about 18 December 2005 the defendant said to Mr Hasler "if you work for Hennessy you would work for Osama Bin Laden. You know that Hennessy is a former bankrupt". (c) On or about 26 March 2006 the defendant said to Mr Hasler words to the effect "that fellow Hennessy you work for is a former bankrupt. You must have your head in the sand if you don't know he was bankrupted about ten years ago … Hennessy's credit was cut off at Sid Newham's and Fish and Co. Where does Hennessy deal now?" 2 The plaintiff pleaded that the matters complained of conveyed the following imputations: (a) That the plaintiff was refused credit in the ordinary course of his business. (b) That the plaintiff is not credit worthy. (c) That the plaintiff is lacking in ethics. (d) That the plaintiff is or was a bankrupt. (e) That the plaintiff may be unable to meet his financial objection to Hasler. (f) That the plaintiff is a dishonourable person. (g) That the plaintiff is a person capable of heinous acts. 3 There are significant problems with the pleadings. Leaving aside questions of form and capacity, the plaintiff is obliged to plead separately the imputations arising from each of the publications rather than plead one group of imputations, and distinction must be made between the causes of action pleaded under the Defamation Act 1974 (NSW) ("the 1974 Act") under which the imputations are the cause of action (s9) and proceedings commenced under the Defamation Act 2005 (NSW) ("the 2005 Act") under which the publication and not the imputation is the cause of action (s8). The parties have agreed upon a timetable for amended pleadings and a statement from Mr Hasler setting out the full text of each of the matters complained of and the imputations alleged to arise from each of the publications. 4 However, a preliminary issue which must be determined is whether these proceedings should be conducted in accordance with the 1974 Act, the 2005 Act or combination of the two. The cause of action for the first two publications accrues under the 1974 Act while the third publication is published after the commencement date for the 2005 Act. 5 Schedule 4 Savings, Transitional and other Provisions, Defamation Act 2005 provides: PART 2 – PROVISIONS CONSEQUENT ON ENACTMENT OF THIS ACT. 2. Application of this Act (1) This Act applies to the publication of defamatory matter after the commencement of this Act, unless subclause (2) provides otherwise. (2) The provisions of this Act (other than this clause) do not apply to a cause of action for the publication of defamatory matter that accrues after the commencement of this Act (the post-commencement action) if: (a) the post-commencement action is one of 2 or more causes of action in proceedings commenced by a plaintiff, and (b) each cause of action in the proceedings accrues because of the publication of the same, or substantially the same, matter on separate occasions (whether by the same defendant or another defendant), and (c) one or more of the other causes of action in the proceedings accrued before the commencement of this Act ( a pre-commencement action ) and (d) the post-commencement action accrued no later than 12 months after the date on which the earliest pre-commencement action in the proceedings accrued. (3) The existing law of defamation continues to apply to the following causes of action in the same way as it would have applied to those causes of action had this Act not been enacted: (a) any cause of action that accrued before the commencement of this Act, (b) any post-commencement action to which the other provisions of this Act do not apply because of subclause (2). (4) In this clause, the existing law of defamation means the law (including all relevant statutory provisions and principles and rules of the general law) that applied in this jurisdiction to the determination of civil liability for the publication of defamatory matter immediately before the commencement of this Act. 6 Applying these provisions to the three publications pleaded in these proceedings: (a) The post-commencement action is one of two or more causes of action; (b) Each cause of action, notwithstanding the defects of presentation in the plaintiff's pleadings, clearly consists of publication of material which is substantially the same; (c) One or more of the other causes of action has accrued before the commencement of the 2005 Act, but (d) While the post-commencement action accrued no later than twelve months after the second publication was made, the first publication occurred approximately 3½ years beforehand. 7 Counsel for the plaintiff submitted that it was "common sense" for the 2005 Act to be applied to all actions as this is now the law. Counsel for the defendant submitted that notwithstanding the gap between the first publication (14 October 2002) and the post-commencement action (26 March 2006) the remaining provisions of Regulation 2 were made out and the 1974 Act should govern all three publications. The principal procedural difference is that under the 1974 Act the jury will only determine s7A issues (whether the plaintiff's imputations are conveyed and defamatory) whereas under the 2005 Act the jury determines all issues except quantum. 8 Clearly it would be undesirable if the two causes of action that accrued before the commencement of the 2005 Act were conducted under the 1974 Act and the third action is conducted under the 2005 Act. Both counsel were opposed to any determination that would result in multiple trials. Thus the decision before me is whether all proceedings should be conducted under the 1974 Act. I note the provisions of Clause 2 of Schedule 4 are, regrettably, not retrospective: Habib v Nationwide News [2006] NSWCA 14. 9 I am of the view that the most appropriate procedure is for all three actions to be conducted under the 1974 Act. Two of the three causes of action must be conducted under that Act in any event: Schedule 4 cl 3. The extent of publication is extremely limited so it is important for legal costs to be kept to a minimum. In addition, counsel for the defendant tells me that the portions missing from the matter complained of consist essentially of swear words, and that at any s7A jury trial a submission to the jury will be made that the matter complained of is incapable of giving rise to defamatory imputations in that each of the publications consisted of no more than vulgar abuse. If such a defence succeeded in relation to one or more of the publications that would be the end of the matter, which would result in costs savings to the parties. 10 Thus the provisions of the 2005 Act will not apply to the cause of action pleaded as having arisen from a publication on 26 March 2006. The previously existing law of defamation, namely the 1974 Act, including all relevant statutory provisions, principles and rules of the general law relevant to the determination of liability for publication of any defamatory imputation, is the law which will apply to all three causes of action. This means that the third publication should be set out in the proposed amended pleading as if it were a publication arising under the 1974 Act. ORDERS 1 The provisions of the Defamation Act 1974 (NSW) apply to all causes of action pleaded in these proceedings. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.