New South Wales Supreme Court CITATION : Purcell & Anor v Cruising Yacht Club of Australia & 2 Ors [2001] NSWSC 927 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20473 of 2000 HEARING DATE(S) : 16 October 2001 JUDGMENT DATE : 16 October 2001 RICHARD GORDON PURCELL (First Plaintiff) ALLURE MARKETING PTY LIMITED (Second Plaintiff) v PARTIES : CRUISING YACHT CLUB OF AUSTRALIA PTY LIMITED (First Defendant) JOHAN CHRISTIAN HUGO van KRETSCHMAR (Second Defendant) PETER HALLAM BUSH (Third Defendant) JUDGMENT OF : Levine J T Tobin Q.C. P Gray (Plaintiffs) COUNSEL : W H Nicholas Q.C. T Blackburn (Defendants) Berne Murray & Tout (Plaintiffs) SOLICITORS : Corrs Chambers Westgarth (Defendant) CATCHWORDS : Re Admissibility of documents - co-publisher - liability as LEGISLATION CITED : Evidence Act 1995 Thiess v TCN Channe 9 Pty Limited (1994) 1 Qd. R 156 CASES CITED : Webb v Bloch & Ors (1928) 41 CLR 331 Woodling v Knickerbocker 31 Minn 268 (1883) DECISION : See paragraph 14 - 1 - DLJ: 3 (Ex Tempore – Revised) [2001] NSWSC 927 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST 20473 of 2000 JUSTICE DAVID LEVINE TUESDAY 16 OCTOBER 2001 RICHARD GORDON PURCELL (First Plaintiff) ALLURE MARKETING PTY LIMITED (Second Plaintiff) v CRUISING YACHT CLUB OF AUSTRALIA PTY LIMITED (First Defendant) JOHAN CHRISTIAN HUGO van KRETSCHMAR (Second Defendant) PETER HALLAM BUSH (Third Defendant) JUDGMENT (Re Admissibility of documents – co-publisher – liability as) 1 HIS HONOUR: The plaintiff proposes to tender the following documentary material: First, the minutes of the meeting of the Board of Directors of the CYCA held on 12 May 1999; second, mfi 1, the news notification; third, a document described as a "Running Sheet" for the conduct, as I understand it, of the press conference; and, fourth, the interrogatories delivered to and answered by respectively the first, second and third defendants. 2 The issues from the pleadings and the evolution of the case from its opening by counsel for the plaintiff can, in my view, be distilled to this extent: (a) the first defendant admits publication of the words attributed to each of the second and third defendants; (b) the second defendant admits publication of the words attributed to him; (c) the third defendant admits publication of the words to attributed to him. Neither the second nor third defendant admits publication by the other of the words attributed to that other. 3 In para 6 of the amended Statement of Claim the plaintiff pleads that on 1 June 1999 the first, second and third defendants at the first defendant's premises published of and concerning the plaintiff the matter set out in the schedule. The matter set out in the schedule to that pleading is constituted by a transcript of part of Exhibit A, the video of the press conference. According to my notations during the playing of Exhibit A, the transcript, roughly represents that part of Exhibit A that commences at 9 minutes 15 seconds into the video and ends at approximately 31 minutes 35 seconds of that video. It is to para 6 of the plaintiff's pleading that the admissions I have referred to above are made in para 5 of the defence. 4 To what issue does the material proposed to be tendered go? Publication. By whom? As I understand it, the third defendant. In what way? The only basis given the content of the material, in my view, must be that the third defendant was a co-publisher and, thus, jointly with the first and second defendant and severally as a co-publisher was responsible for the publication. The expression used in the course of submissions was that there was an acting in concert. 5 I have been referred to the well-known passage in the judgment of Isaacs J in Webb v Bloch & Ors (1928) 41 CLR 331 at 364 where his Honour cites from a case of Parks v Prescott, a citation from Starkie on Evidence in the following terms: "All who are in any degree accessory to 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 suggests illegal matter in order that another may rightably print it or that a third may publish it all are equally amenable to the acts of publication when it has been so effected". 6 That passage is considered, in my view, in an important way in the decision of the then Full Court of the Supreme Court of Queensland in Thiess v TCN Channel 9 Pty Limited (1994) 1Qd. R 156 at 194 to 195 "It was and is admitted that TCN 9 published all the defamatory imputations contained in the television programmes broadcast on the four occasions specified. The question to be decided is whether the evidence was such as to require the jury, acting reasonably, to find that Woodham was a co-publisher with TCN9 of the same matter, and so make him liable at law for the consequences of doing so. 'Liability for a publication', says Gatley on Libel , (8th ed., 1981), para. 236, at 108, 'arises from participation or authorisation. Thus, where a libel is published in a newspaper or book, everyone who has taken part in publishing it, or in procuring its publication, or has submitted material published in it, is prima facie liable'. The correct rule is, it was submitted, that adopted by Isaacs J. in Webb v Bloch (1928) 41 C.L.R. 331, 364, which is that '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'. Accordng to his Honour arguendo in the same case, the liability is joint and several: see Web v. Boch (1928) 41 C.L.R. 331, 345. Knox C.J. spoke of such persons as joint tortfeasors (ibid., at 359). So much must be accepted. It is necessary, however, to use care in applying general statements of this kind. Those who made them were directing attention to identifiable defamatory statements, to the publication of which in the completed form the defendant in question was held to have given his authority or approval or to the final form of which he had contributed. Webb v. Bloch was an instance of that kind. The defamatory circular in that action was drafted by the solicitor Norman on instructions from the defendant Bloch. Bloch received the draft on 10 February 1926 although none of the other defendants saw it then. On 16 February 1926 Bloch instructed Norman to issue the circulars and his action in doing so was confirmed on 22 February by the Victorian committee, of which all the defendants were members. Starke J. (41 C.L.R. 331, 340) regarded this act of confirmation as rendering all the defendants responsible in law for the issue of the circular. His honour considered Norman not as the author of the circular 'but rather as the amanuensis of the defendants' (41 C.L.R. 331, 342). On appeal, Knox C.J. agreed with Starke J. in thinking that all defendants were responsible in law for the publication of the circular (ibid., at 347). Gavan Duffy J. would have dismissed the appeal from the judgment given by Starke J. in favour of the defendants (ibid., at 375). Only Isaacs J. found it necessary to examine the authorities in order to discover what may have been a wider basis of liability. What is said in Webb v. Bloch and Gatley would perhaps suffice to make Woodham liable with TCN 9 if he had seen the script or viewed the programmes before publication; but the evidence is that he did not do so. The decision in Webb v. Bloch is concerned with a case that is in some ways the direct converse of this. There the question was whether the defendants were principals of the solicitor Norman, who was the author and publisher of the defamatory circulars. No one suggests that Woodham was the principal of TCN 9 as author and publisher of the television programmes. He is not shown to have exercised control over its final form. At most he played a subsidiary and intermediate, if important, part in the creation of the product that in its finished state ultimately went to air. It is true that Woodham himself, or the visual image of Woodham, appeared in one or more of the programmes (principally the first ACA programme) broadcast by TCN 9, and that he was visible and audible to viewers as saying words that may have formed part of 'the matter supporting the imputations or any of them'. However, as we have seen, and despite the form of question 1, what the jury were asked to do was not to say whether Woodham published some, but whether he published all, of the matter supporting the defamatory imputations. Unless he was a co-publisher of all, the jury were, having regard to the way in which that question was left to them, entitled and indeed bound to find that he was not a co-publisher 'with' TCN 9. As to that, the evidence is that there were some matters published abut which Woodham knew little or nothing. The Winchester south coal concession is one, and the Expo '88 contract another. Furthermore, the decision to describe what had taken place as 'bribery' or as 'defrauding shareholders' was not that of Woodham but of Wilkinson and of Jones. Wilkinson was a senior journalist employed on the programme by TCN 9, and Jones was a legal adviser to the programme producers." 7 In this context I cannot help but acknowledge my being reminded of what Gilfillin CJ said in Woodling v Knickerbocker 31 Minn 268 (1883). Mr Tobin reminded me of it by reference to the Second Edition of Professor Brown's treatise on the Law of Defamation: "If he authorised, incited or encouraged any other person to do it or if having authority to forbid it he permitted it, or having authority to remove them he allowed them to remain the act was his." 8 The tendered material goes to the matter of the decision to hold the press conference and the allocation of subject matters to participants in it. This is particularly evident in the minutes of the meeting. MFI 1, the news notification, and the running sheet, the respective answers to interrogatories also relate to what I have described in general terms as to the decision to hold a press conference, discussions in relation to that and the allocation of tasks. 9 In support of the tender I was referred, inter alia, to lines 144 and following of schedule A of the amended Statement of Claim where at about 25 minutes into Exhibit A there can be seen to be a passing on, if I can use that neutrally, by Mr Bush to the Commodore of an answer to a question relating to rule 69 and the Sword of Orion. 10 I have come to the view that the tendered material is relevant under s 55(1) of the Evidence Act. I propose to admit the documents. The admission of the material in my view, however, can only go to a step in proving the co-publishing component vis-a-vis the third defendant. The acting in concert to organise and speak at a press conference by itself may play some part in establishing liability as a co-publisher. Whether it is determinative of liability of a co-publisher of any slander in the course of the press conference is another matter. 11 Webb v Bloch and Thiess v Channel 9 are distinguishable on their facts. The relevant co-publisher or alleged co-publisher in each of those cases was the author or had some antecedent role in the creation of the defamatory matter ultimately published. 12 Here there is at present, in my view, no evidence other than that the third defendant could be found to have acted in concert in relation to the antecedent arrangements of a press conference and allocation of speaking roles. At that point there was no evidence of the antecedent connection in the third defendant with the slander. If there were any at all it was uttered during the course of the consequential conference itself. 13 It, thus, seems to me that it will be desirable that the directions to the jury in relation to the third defendant and, thus, addresses be settled. My present but not concluded view is that the only basis on which it could reasonably be open to the jury to find the third defendant a publisher is as a co-publisher rather than an original or separate publisher. The evidence on that issue would comprise the admitted documents going to acting in concert in relation to the holding of the press conference and the allocation of speaking roles which, I have indicated, is not determinative and, importantly, the evidence via Exhibit A of what, in fact, took place as recorded in Exhibit A at the conference itself. 14 It is one thing for there to be evidence capable of going to establish the acting in concert in relation to the press conference and the roles to be played in it. It is another whether that which is exposed as having occurred in the press conference reasonably could permit the jury to conclude that the third defendant was a co-publisher. However, upon the tender by Mr Tobin in the presence of the jury of the documents the objection of the defendant will be noted and they will be admitted as exhibits. ********** Last Modified: 10/22/2001 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.