Reported Decision : 57 NSWLR 670 New South Wales Supreme Court CITATION : Belan v Casey [2003] NSWSC 159 HEARING DATE(S) : 4/3/03-6/3/03 JUDGMENT DATE : 2 May 2003 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Application for contribution between tortfeasors jointly and severally liable to pay a judgment dismissed, on basis that; (a) no right of contribution at law existed; (b) any statutory right of contribution is statute barred; (c) for all except $23,813.12, funding, by people other than the plaintiff, of payment of judgment debt meant rationale for equitable contribution did not exist; (d) even if an equity of contribution now existed between joint tortfeasors (a matter expressly not decided) it would be statute barred by analogy. CATCHWORDS : EQUITY - equitable contribution - requirement for plaintiff to have actually paid or to be about to be required to pay more than his/her share - contribution dependent on matters of substance not technicality - contribution not available when plaintiff in substance not worse off through circumstances of discharge of liability - EQUITY - equitable contribution - whether now available between joint tortfeasors - EQUITY - limitation of action - application of statutes by analogy - TORTS - THE LAW OF TORTS GENERALLY - joint or several tortfeasors - basis for contribution between joint tortfeasors - whether common law action now available for contribution between joint tortfeasors - LIMITATION OF ACTIONS - contribution between tortfeasors - application of limitation period by analogy if equitable right of contribution were available between tortfeasors - CONTRACTS - whether contract entered in particular circumstances - no consideration of principle - ESTOPPEL - whether estoppel exists in particular circumstances - no consideration of principle Defamation Act 1974 Law Reform (Miscellaneous Provisions) Act 1946 Limitation Act 1969 LEGISLATION CITED : Mercantile Law Amendment Act 1856 Motor Vehicles (Third Party Insurance) Act 1942 Municipal Corporation Reform Act 1835 Trade Practices Act 1974 (Cth) Adamson v Jarvis (1827) 4 Bing 66; 130 ER 693 Adcock v Aarons (1903) 5 WALR 140 Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342 Arnold v Clifford (1835) 2 Sumner 238 Attorney General v Wilson (1840) Cr & Ph 1; 41 ER 389 Austral Pacific Group Limited (in liquidation) v Airservices Australia (2000) 203 CLR 136 Australian Breeders Co-operative Society Ltd v Jones (1997) 150 ALR 488 Bailey v Bailey (1884) 13 QBD 855 Betts v Gibbins (1834) 2 Ad E 37; 111 ER 22 Bonner v Tottenham & Edmonton Permanent Investment Building Society [1899] 1 QB 161 Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 Burke v LFOT Pty Ltd [2002] HCA 17; (2002) 76 ALJR 749 Cia de Seguros Imperio v Heath (REBX) Ltd [2001] 1 WLR 112 Cockburn v GIO Finance Ltd (No.2) (2001) 51 NSWLR 624 Colburn v Patmore (1834) 1 CM&R 73; 149 ER 999 Coulthard v Disco Mix Club Ltd (2000) 1 WLR 707 Dall v The Blue Wren Taxi Co Pty Ltd [1926] VLR 365 Davenport v Commissioner for Railways (1953) 53 SR (NSW) 552 Dering v Earl of Winchelsea (1787) 1 Cox 318; 29 ER 1184 Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 Genders v Government Insurance Office of NSW (1959) 102 CLR 363 Grant v Easton (1883) 13 QBD 302 CASES CITED : James Hardie & Coy Pty Limited v Seltsam Pty Limited (1998) 196 CLR 53 Jones v Mortgage Acceptance Nominees Ltd (1996) 63 FCR 418; (1996) 142 ALR 561 Knox v Gye (1872) LR5HL Re: La Rosa; ex parte Norgard v Rodpat Nominees Pty Ltd (1991) 31 FCR 83 Lingard v Bromley (1812) 1 V & B 114; 35 ER 45 London Association for Protection of Trade v Greenlands Limited [1916] 2 AC 15 Mahoney v McManus (1981) 180 CLR 370 Merryweather v Nixan (1799) 8 TR 186; 101 ER 1337 Moscati v Lawson (1835) 7 Car P 32; 173 ER 14 Palmer v Wick and Pultneytown Steam Shipping Company Limited [1894] AC 318 Pearson v Skelton (1836) 1 MW 504; 150 ER 533 R v Holbrook (1878) 4 QBD 42 R v McNeil (1922) 31 CLR 76 Shackell v Rosier (1836) 2 Bing (NC) 635; 132 ER 245 Sir Will. Harbert's Case (1584) 3 CoRep 11b; 76 ER 647 Sky Channel v Tszyu [2000] NSWSC 838 In Re Snowdon; ex parte Snowdon (1881) 17 Ch D 44 State of Victoria v Hansen [1960] VR 582 The Englishman and The Australia [1895] P 212 Trade Practices Commission v Manfal Pty Ltd (No.3) (1991) 33 FCR 382 W H Smith & Son v Clinton (1908) 99 LT 840 Wolmershausen v Gullick [1893] 2 Ch 514 Wooley v Batte (1826) 2 Car P 417; 172 ER Derrick Belan - First Plaintiff PARTIES : Nicholas Belan - Second Plaintiff (as Executors of the Estate of the Late Frank Belan) Arthur Casey - Defendant FILE NUMBER(S) : SC 3909/01 COUNSEL : L J Aitken - Plaintiffs M Dulhunty - Defendant SOLICITORS : Maurice May & Co - Plaintiffs R L Whyburn & Associates - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST CAMPBELL J 2 MAY 2003 3909/01 DERRICK BELAN & ANOR (As Executors of the Estate of the Late Frank Belan) v ARTHUR CASEY JUDGMENT HIS HONOUR: Nature of this Case 1 The plaintiffs are the executors of the Late Mr Frank Belan ("Mr Belan"). Mr Belan and the defendant in this action, Mr Arthur Casey ("Mr Casey"), were the defendants in two defamation actions. Mr Belan and Mr Casey lost those actions, and were ordered to pay damages, and costs. The damages and costs have now been paid. Mr Casey paid no part of them. By these proceedings, the plaintiffs seek contribution from Mr Casey towards the amount of the damages, the costs, and some fees which were paid to a costs consultant for assistance in assessing the quantum of costs payable. The plaintiffs' pleading says that contribution is sought pursuant to section 5 of the Law Reform (Miscellaneous Provisions) Act 1946, at law, and in equity. Background to the Defamation Actions 2 The circumstances in which the defamation actions came to be brought bear upon the probabilities of some of the disputed issues in this litigation. Mr Casey submits that they also bear upon what proportions of the judgment should be borne by himself and Mr Belan respectively, if an order for contribution were to be made. 3 In 1990 discussions began for the amalgamation of five industrial unions. One of those unions was the Federated Storemen and Packers' Union of Australia, New South Wales Branch, known as the "Storemen and Packers' Union". Another was the Federated Millers and Manufacturing Grocers Employees' Association of Australasia, New South Wales Branch, known as the "Millers Union". Mr Belan was the State Secretary of the Storemen and Packers' Union. Mr Edward Palmer ("Mr Palmer") was Secretary of the Millers Union. Mr Denis Boner ("Mr Boner") was the Assistant Secretary of the Millers Union. 4 In 1992 the amalgamation of the unions occurred, resulting in a new union known as the National Union of Workers ("NUW"). The rules of the Millers Union had made provision for certain officials, on retiring or removal from office, to be granted three weeks holiday at their current rate of salary for each completed year of service. There was no provision, in the terms upon which it had been agreed that the amalgamation of the unions would proceed, for that benefit to be carried forward to become the responsibility of the new union. Before it went out of existence, the Millers Union paid to Mr Palmer and Mr Boner the amount of this retiring allowance, together with payment for long service leave which they had accrued. This was done in accordance with advice from the solicitor of the Millers Union, and resolutions of the Executive of the Millers Union. 5 The NUW was divided into Divisions, one of which was known as the Food 1 Division. Former members of the Millers Union became members of the Food 1 Division. Upon amalgamation, Mr Palmer was made the Secretary of that Division, and Mr Boner was made an Organiser. Mr Belan became Secretary of the new union. 6 In September 1992 Mr Belan expressed concern to Mr Palmer that the payments had been made to the former officials of the Millers Union. In October 1992 solicitors advised the NUW that officers of the former Millers Union were not entitled to these payments. Mr Belan wrote to officers of the former Millers Union, including Messrs Palmer and Boner, requiring that the retiring allowance be reimbursed. On 28 October 1992 the Committee of Management of the NUW resolved to charge Messrs Palmer and Boner and one other former officer of the Millers Union. Those charges related, broadly, to breaches of the rules of the NUW in failing to carry out directions of the State Secretary to refund the money, failing to comply with directions of the Committee of Management to refund the money, and misappropriation of the funds of the Union. On 30 October 1992 Mr Belan wrote to Messrs Palmer and Boner saying that, pending the hearing of the charges, they were relieved from all official duties. This happened notwithstanding that Messrs Palmer and Boner had obtained written advice from Senior Counsel that the payments were justified, and made a copy of that advice available to Mr Belan. 7 On 3 November 1992 Messrs Palmer and Boner began proceedings in the Industrial Court of New South Wales, seeking orders restraining the Committee of Management (including Mr Belan) from proceeding to hear the charges. Hill J heard that application over several days. He reserved judgment. Judgment was delivered on 28 June 1993. He held that Messrs Palmer and Boner were entitled to the retirement allowances. He also held that participation in the hearing of the charges of people who had been involved in passing of the resolution requiring repayment of the money would deny procedural fairness to Messrs Palmer and Boner, and that the procedure which the NUW adopted, of taking punitive action under the rules, rather than suing to recover the money it thought had been incorrectly paid, was not fair or reasonable. Hill J ordered that the respondents to the application pay the costs of Messrs Palmer and Boner, on an indemnity basis. On appeal against that costs order, the Full Court of the Industrial Court of New South Wales in late 1993 upheld it, the Full Court saying: "… the decision by his Honour to award costs on an indemnity basis as against Mr Belan was not only open to him, but was also correct." 8 In August 1994 the NUW held an election. It was contested. One group of candidates was known as the Frank Belan Team. It included Mr Belan (who was standing for the position of Secretary) and Mr Casey. Mr Casey was standing, in opposition to Mr Palmer, for the position of Secretary of the Food 1 Division. Mr Boner was also a candidate in the same election, seeking election as an Organiser. The Frank Belan Team included an alternative candidate for that position. 9 In the course of the election campaign the Frank Belan Team campaign office sent, to 5,000 members of the Food 1 Division, an envelope containing two pieces of paper. One of those pieces of paper was a letter from Mr Belan. The other was a leaflet. Both the letter, and the leaflet, made various remarks about the circumstances in which Mr Palmer and Mr Boner had received money from the Millers Union. The letter urged recipients to support Mr Casey in the election. The leaflet urged support for both Mr Casey and the Frank Belan Team. 10 In 1994 Mr Palmer and Mr Boner brought defamation actions against Mr Belan and Mr Casey. Mr Palmer brought two actions. One of them was against Mr Belan alone, and related only to the publication of the letter. The other was against both Mr Belan and Mr Casey, and related to the publication of the leaflet. Mr Boner brought one action, which was against Mr Belan and Mr Casey, and related only to the leaflet. 11 Mr Belan informed the NUW Branch Committee of Management in 1994 of the commencement of the defamation actions. He told the meeting that the actions were an attack upon the Union, not himself or Mr Casey personally, and that they needed the assistance of the Union to defend it. It was not uncommon for the Union to meet expenses connected with litigation which arose from union affairs. Mr John Whelan, who was an officer of NUW in 1994, gives evidence that the defamation action against Mr Belan and Mr Casey came to his attention in 1994: "There were a lot of discussions as to how we could help these people. I can recall attending a meeting and we all accepted the fact that they were our fellow unionists and fellow officers, and we had to do something to help them should they get involved in some legal argument or charges, or whatever. So that is the environment, but I can say this, that there was a very strong intention to help the late Frank Belan and Arthur Casey in any difficulty that they were having." I am not persuaded that any particular resolution to provide assistance to Mr Belan or Mr Casey was passed by any organ of the Union in 1994, however. 12 As the defamation cases progressed, they were reported on occasionally to meetings of Union officials. On 19 June 1995 at a meeting of Branch Officers of the NUW the minutes record legal advice that "we should counter sue", and record some suggestions as to how evidence could be collected. The minutes of the NSW Branch Committee of Management held on 3 June 1996 record: "Ongoing defamation case against Frank Belan and Arthur Casey by Denis Boner and Ted Palmer will go ahead in October/November. Arthur Casey supplemented the report, with a discussion following. Chris Innes offered Frank and Arthur his support and commented that he felt sure the other officials would offer support also. Frank Belan will be talking to a number of other solicitors, seeking their collective opinions." 13 In April 1997 Maurice May & Co, solicitors, came to be instructed for Messrs Belan and Casey in the defamation cases. Other solicitors had handled the matter up to that time. The file at Maurice May & Co was opened in the name of "National Union of Workers NSW Branch". Mr Casey gives evidence that at that time, "Frank gave me a slip of paper to sign which authorised me to transfer my file or the file of the union from Conrad Staff to Maurice May and I refused to sign it. He said 'if you refuse to sign it you haven't got a job here. ' Q. What happened then? A. I signed it." 14 On several occasions before the hearing of the defamation case Mr Belan said to NUW officials, including to Mr Casey, that if the case was lost he would sell his house. Mr Casey told Mr Belan he had no assets to sell. 15 In July 1997 fees of $850 were paid from the Union funds, to a barrister who had done some work on interlocutory matters concerning the case. 16 On 23 December 1998 Mr Palmer and Mr Boner made offers to compromise the defamation litigation. Mr Palmer offered to compromise the action he had against both Mr Belan and Mr Casey for $15,000 plus costs, while Mr Boner offered to compromise the action he had against both Mr Belan and Mr Casey for $20,000 plus costs. Those offers were not accepted, predominantly because Mr Belan did not want to accept them. 17 The three defamation actions were heard together. The trial occurred before Kirby J, in the Common Law Division of this Court, over six hearing days commencing on 1 February 1999. At the trial, Mr Belan and Mr Casey were represented by the one set of counsel and solicitors. Kirby J's Judgment in the Defamation Actions 18 Kirby J delivered judgment on 12 March 1999. Each plaintiff was successful. In the action brought by Mr Palmer against Mr Belan alone, there was a verdict for the plaintiff in the sum of $25,000 plus costs. In the action brought by Mr Palmer against Mr Belan and Mr Casey, there was a verdict for the plaintiff against both defendants, jointly and severally, for $65,000 plus costs. In the action brought by Mr Boner against Mr Belan and Mr Casey, there was a verdict for the plaintiff against both defendants, jointly and severally, in the sum of $75,000 plus costs. 19 Kirby J found that the following imputations arose from the publication of the letter. (a) Mr Palmer deliberately and dishonestly misappropriated union monies (b) Mr Palmer to hide his misappropriation of union monies deliberately and falsely implicated an innocent person as being responsible for the misappropriation of union money This last mentioned imputation arises from the letter having referred to a pamphlet which Mr Palmer had published, entitled "Belan Set Me Up" , which included an assertion that Mr Belan had told Mr Palmer, prior to the Union amalgamation, that the Millers Union should discharge all its liabilities before the amalgamation took place. Kirby J found that this assertion of Mr Palmer's was correct. 20 Kirby J found that the leaflet contained the following defamatory imputations, concerning each of Mr Palmer and Mr Boner: "(a) the plaintiff as a union official stole money from his union (b) the plaintiff deliberately commenced court action to stop his stealing of union funds being detected (c) the plaintiff to hide his stealing of union funds deliberately and falsely implicated an innocent person as being responsible for such stealing of union funds." 21 Kirby J held that Mr Belan had published both the letter and the leaflet, and that Mr Casey had published the leaflet. His Honour found, at [113] "… Mr Belan acknowledged his responsibility for the dissemination of both the letter and leaflet … . They were shown to him. He read them. He gave his approval. He signed the letter. It was his expectation that they would be distributed to members of the Food 1 Division." 22 His Honour found that Mr Casey had published the leaflet because both documents had been given to Mr Belan by Mr Casey ([118]-[119]), and also because Mr Casey consented, in a more general way, to Mr Belan putting out brochures on behalf of the Frank Belan Team that would protect Mr Casey's position. 23 Kirby J rejected a defence that in the circumstances of publication on the matter complained of, the person defamed was not likely to suffer harm. He found that there was qualified privilege at common law, arising from the publication having been made in the course of a Union election and as a response to an attack. He found that qualified privilege under section 22 of the Defamation Act 1974 was not made out. His Honour regarded as sufficient to reject that defence that the element of section 22 requiring that "the conduct of the publisher in publishing that matter is reasonable in the circumstances" had not been made out. The reasons his Honour gave (at [165]-[169] of his judgment) differed as between Mr Belan and Mr Casey, but those differences are not material for present purposes. 24 Kirby J also rejected a defence of comment for two reasons - that various aspects of the publications were not true (and therefore any comment was not based on proper material for comment), and that each defendant had stated, in answers to interrogatories that he did not intend to convey the imputations which Kirby J held were in fact conveyed by the document. Thus, all defences raised were not made out, except qualified privilege at common law. 25 Notwithstanding Kirby J's finding that qualified privilege at common law was established, Mr Belan and Mr Casey failed in the actions because Kirby J found that they were actuated by malice. The way in which the malice was established was different for Mr Belan to the way it was established for Mr Casey. His Honour found that Mr Belan lacked an honest belief in the truth of a number of statements in the publications ([210]-[220]). "In publishing the material with these falsehoods, he was actuated by malice. He wished to harm the electoral prospects of Messrs Palmer and Boner, and, thereby, enhance his own, and those of Mr Casey." 26 Concerning Mr Casey, Kirby J said that, at [221]: "Mr Casey was differently placed to Mr Belan. He had not lived through the court case before Hill J nor the appeal. His knowledge, therefore, was incomplete compared to that of Mr Belan. Indeed, his knowledge concerning the retirement benefits and court case substantially derived from Mr Belan … . He had been made a member of the Frank Belan Team. He was the candidate nominated by the Team in opposition to Mr Palmer. He was a young man, entering union politics. He had previously been a delegate. Mr Belan, the leader of the Team, was a seasoned union official. He plainly dominated Mr Casey. Mr Casey nonetheless, was the beneficiary of the attack made by [the leaflet] upon Mr Palmer." 27 His Honour held that: "Mr Casey published [the leaflet] recklessly. He neither considered, nor really cared, whether it was true or false." [226] 28 His Honour went on, at [227]: "It was submitted by the defendants that it was not open to infer an absence of honest belief in the material published, since neither defendant was cross examined upon that basis. The cross examination was confined to the sources of their knowledge, which is a different issue. No doubt it would have been helpful to me had Mr Belan been cross examined as to his beliefs. It may have been fairer to have done so. Nonetheless, I believe that the issue was sufficiently raised in the documentary material which was tendered, without objection, and especially the judgments of the Industrial Court. I believe that the findings that I have made, therefore, are appropriate." 29 His Honour also held that there was malice arising from Mr Belan, in the contest of Mr Palmer and Mr Boner having stood for election in opposition to his candidates, having chosen, "to publish documents which he knew to contain falsehoods, and which he intended would damage their reputations. That was his dominant purpose. He was not, in short, seeking to put before the electors the truth as he saw it." [244] 30 Concerning Mr Casey, Kirby J found that there was no evidence of malice, in the sense of personal spite. However because Mr Casey was prepared to allow Mr Belan to publish brochures on his behalf, Kirby J held that Mr Casey was visited with Mr Belan's malice. 31 The reasons for judgment of Kirby J were tendered before me without objection. Events Soon After Kirby J's Judgment 32 Immediately after Kirby J delivered judgment in the defamation action on 12 March 1999, another aspect of the internal politics of the NUW came into play. There had been longstanding animosity between the New South Wales Branch of the Union and Mr Belan, on the one hand, and the National office of the NUW and its general secretary, Mr Greg Sword, on the other hand. On the same day that Kirby J handed down his judgment, Mr Sword wrote to the New South Wales Branch Committee Members saying: "It is my understanding that the Supreme Court today, Friday 12 March 1999 awarded damages of $90,000 to Ted Palmer and $75,000 to Denis Boner arising from defamation proceedings brought against Frank Belan and Arthur Casey. It is also my understanding that costs were awarded again Frank Belan and Arthur Casey. You are aware that the National Committee of Management has passed a resolution in the following terms: "That the NSW Branch, each officer of the Branch, the NSW Branch Committee of Management and each member of it is directed not to authorise or pay or take any steps to enable the authorisation or payment of any funds of the Union including any Branch funds either directly or by loan, grant, donation or on an indemnity basis towards any costs or damages arising from the defamation litigation brought against Frank Belan and Arthur Casey by former NUW officials Ted Palmer and Denis Boner." I remind you that this resolution is required to be observed. It is also my view that independent of the resolution of the National Committee of Management the expenditure of any Union funds in this matter would not be a proper or valid use of Union funds (including the State Union). Accordingly I seek an undertaking from you that the resolution will be observed and that no funds of the Union will be used as proscribed by the resolution. This undertaking should be supplied to me by close of business on Tuesday 16 March 1999. In the event that no undertaking is provided by close of business on Tuesday 16 March 1999, you are on notice that I will take all steps necessary to protect the funds and assets of the Union. Any officer of the Union who may be found to be responsible for any misuse of Union funds will be held accountable to the full extent of the law. Please contact me should you require any further information. Yours fraternally," 33 On 23 March 1999 there was a special Branch Committee of Management meeting of the NSW Branch of the NUW. After referring to Mr Sword's letter of 12 March, and a further letter of 17 March 1999 in which Mr Sword "referred to the 1992 s.202 agreement, clause 8 of which says that the funds of the NSW Branch of the Union and of the NUW registered organisation are held jointly" records that "Frank Belan is under instructions from lawyers to write to General Secretary Sword advising him as Branch Secretary that he will not use Union funds to pay for the abovementioned costs." (The Union members repeatedly use the word "costs" to refer to both the amount of the verdict, and the amount of the legal costs.) A resolution was passed that: "The Committee of Management of the National Union of Workers, New South Wales Branch and each member of it resolves not to authorise or pay or take any steps to enable the authorisation or payment of any funds of the Union either directly or by loan, grant, donation or on an indemnity basis towards any costs or damages arising from the defamation litigation brought against Frank Belan and Arthur Casey by former NUW officials Ted Palmer and Denis Boner." 34 On 29 March 1999 written advice was received from counsel who had appeared at the defamation hearing for Messrs Belan and Casey, concerning the prospects of appeal. The only avenue of appeal which counsel saw as being available concerned the finding of malice. He saw some scope for complaint about the way in which the central issues on malice were not raised with the defendants in cross-examination. However, Counsel said: "Given the numerous, and mostly incontrovertible factual issues on which the findings of malice against Mr Belan were made, it may in practical terms be difficult to show any prejudice to him in the way in which the plaintiffs' case was conducted. But the basis of the findings of recklessness against Mr Casey may well have been altered if this precise question had been approached in cross-examination, and he had been given an opportunity to explain." Counsel concluded: "In short, then, I believe there is some prospect that an appeal on behalf of Mr Casey on the question of malice could succeed. If this happened, the most likely result is that the Court would declare his defence of qualified privilege to have succeeded. This result, however, would still leave Mr Belan liable for the whole damages awarded as the liability between him and Mr Casey is joint and several. (paragraph 295) We could not, having to this point represented Mr Belan and Mr Casey together, conduct an appeal which might have such a consequence without specific written instructions, including acknowledgement of that possible consequence, from both Mr Belan and Mr Casey." 35 On 9 April 1999 Maurice May & Co filed a Notice of Appeal, on behalf of both Mr Belan and Mr Casey. Later, Mr Casey engaged Hunt & Hunt as his own solicitors, to appeal against the decisions of Kirby J insofar as they related to him. Hunt & Hunt filed a Notice of Appeal on Mr Casey's behalf on 8 July 1999. Officials Donate The Campaign Fund and their Annual Leave 36 In the late 1980's a bank account, called the "Campaign Fund", which had a connection with the Union, had been established. It was referred to informally by the Union officials as the "slush fund". There were at any time between 12 and 15 officials of the Union. Those officials contributed money from their wages each fortnight to that Fund. By 1999, most officials were putting in $50 per fortnight, though some contributed at the rate of $20 per fortnight. When the Fund was started the standard rate of contribution was $20 per fortnight. At some stage there was a move to increase the contributions to $50 per fortnight, but not all officials agreed, and those who did not agree continued to contribute at $20 per fortnight. Sometimes money was paid into the Campaign Fund as a result of fundraising activities which the officials at the time conducted – activities like putting on a lunch and charging people who attended. However, the bulk of the money in the Fund came from contributions from the officials. Sometimes if a contributor stopped being an employee of the Union he or she was paid back the amount still in the Fund representing his or her contributions; sometimes if an employee who had contributed to the Fund ceased being an employee, he or she did not ask for those contributions back. There were three signatories to the bank account, any two of whom could sign cheques on the Fund. Mr Belan was at all relevant times one of those signatories. There were no rules or guidelines concerning the operation of the Fund. Mrs Doreen Campbell, who was the President of the NSW Branch of the NUW from 1994, and remained President in 1999 gave evidence as follows: "HH. Mrs Campbell, I got an impression, and I might be quite wrong about this and tell me if I am, that part of the thinking behind the campaign fund is that if the current team of officials in the union were to lose an election, they would be out of a job and therefore they have a personal interest in being re-elected and are prepared to put some of their own money on the line to assist in re-election. Is that an accurate position? A. I think that is very accurate. When the campaign fund was originally set up, and in my previous evidence I have stated I was one of the people that started the fund, it was purely on a basis, in a previous organisation where I had worked, where we were challenged, there were many young males with families and if they were challenged in an election those people had commitments with families and homes, that they would not have money behind them to face an election because an election has to be paid out of the pockets of individuals not out of any union funds, of course. So this strategy behind that is what you have put to me this morning, that the money was there, set up, accrued on the basis that if we were ever challenged, I guess, we would look after our own vested interests if we were challenged to fight a campaign." 37 The 1994 election had been hotly contested, which resulted in the officials standing for re-election incurring a very large printing bill, which was not paid off until some time in 1995. From that time onwards, however, money had accumulated in the Campaign Fund. 38 Even though the purpose of the Campaign Fund was to provide money for meeting election challenges, it was sometimes used for other purposes, provided that a meeting of union officials approved. On one occasion, for example, it was used to provide money to an official who was having his car repossessed. 39 On 19 May 1999 there was a meeting of officials of the NSW Branch of the Union, held in the boardroom of the State Branch of the Union at Granville. They agreed that the Campaign Fund could be used to meet the verdicts. They felt that they were justified in using the Campaign Fund in this way, notwithstanding the resolution that union funds would not be used to pay for the defamation actions, because they had a common understanding and intention that the Campaign Fund belonged to the officials, not the union. Mr Derrick Belan (son of Mr Belan, one of his executors, a plaintiff in this action, and also an official of the NUW) gave evidence that: "In that meeting we discussed how we were going to pay these monies as a group. We always had the view it was one for all, due to the fact that it came out of an election. Then we discussed the use of the Campaign Fund agreed by all officials. In that meeting my father said he would find a way to pay the money back." 40 Mr Derrick Belan, when asked precisely what his father said, or what was said to him, gave evidence as follows: He said, "Basically the decision has been made against me. If I have to sell my house, I will do that, to pay it". He was told, "No, don't do that. We are all in this together. It is out of an election. Let's stick together and see if we can sort it out". Mr Casey told us that he was going to appeal the decision. He was told by Mr Joseph that he would be on his own and he could not expect any help from the other officials. When asked why he wanted to appeal it, he said he did not want his children to know he had been found guilty of defamation. Arthur left the meeting and the officials continued the meeting with the discussion about the payment. We also discussed raising some fundraising activities to raise the money and get the money together. Q. Looking at what was said about the advance of the moneys, what was said by your father to the committee with respect to the way in which those moneys were to be treated? A. The secretary at the time was always in control of the campaign fund. It had been that way forever. There was never any debate about who controlled the campaign fund. The campaign fund, for instance, once was used to help an official whose car was being repossessed. It was being used to help the officials in general. He really did not ask for the assistance but he was offered it and he took it, although he was very disappointed about Arthur's behaviour in that meeting. Q. You said, I think, he said he would endeavour in some way to repay it? A. Yes. Q. What was said in relation to that? A. I think generally we always run under the banner of the Frank Belan team and any moneys raised were raised because of him. He used to draw the crowds to fund activities. He had a lot of respect. I believe he was going to pay it back when he could, but then he got cancer and things did not turn out the way we wanted." That the Campaign Fund should be used in this way was consistent with the view, which Mr Belan made known to union officials from the time that the defamation actions started, that he regarded them as an attack upon the Union, not upon himself or Mr Casey personally. 41 As well, at a meeting of officials on 31 May 1999 a consensus emerged that the officials should each donate their pay for four weeks of accrued annual leave towards payment of the judgment. Mr Casey and Mr Derrick Belan walked around the boardroom table where all the officials were seated, and each official signed a leave application form. Mr Casey, along with the other union officials, gave up four weeks of leave pay in this way. 42 Mr David Meehan was an organiser with the NUW at the time. He gives evidence about these meetings as follows: "Q. And can you recall if there were any decisions or resolutions made about how the costs of those proceedings were going to be paid? A. I do not think there were any resolutions. I think there were general decisions of how it could be paid. Q. And what was the general decision on how it could be paid? A. My understanding was that we would just pay it by using the slush fund and by donating annual leave. … A. I think Frank might have given a report which explained the outcome of the defamation case and he explained that there was a sum of money that had to be paid. The term he used was "joint and several" and that was explained that it was for both of them. Q. And have you ever been repaid your annual leave? A. No, not that I am aware of. Q. You personally, were you donating your annual leave to just Frank or to both Frank and Arthur? A. I thought I was donating it to pay off the money. As I understood it there was a sum of money to be repaid and had to be paid off, and it was not something you split." 43 Mr Meehan's understanding of the outcome of the discussion was: "I understood the monies would be to pay the money that Frank and Arthur owed for this defamation. I donated money to pay off the debt that Frank and Arthur owed as a result of the defamation. It was specifically for that." 44 Mr Meehan said that he was not aware of any arrangement that was made whereby Mr Belan would borrow money to enable him to pay the judgment debt. 45 The evidence does not establish the precise amount which was raised by this donation of annual leave, or into which account it was paid. In light of evidence precisely identifying the sources of payments into the Frank Belan Defamation Defence Fund, discussed below, I would be inclined to infer that the annual leave was paid into the Campaign Fund, but this is not an inference made with great confidence. 46 Later on 31 May 1999 there was a meeting of the New South Wales Branch Committee of Management of NUW. The minutes of that meeting record the following: "State Secretary reported that a copy of the Decision on the Defamation case [Boner & Palmer] is now available to anyone who would like a copy. The Decision went against Frank Belan and Arthur Casey at an approximate total cost of $300,000.00 and Frank reported that he is waiting for legal advice on whether the payments can be made in instalments. Frank Belan referred to a report given at this morning's Officers meeting, outlining appropriate methods of repaying the costs referred to above. MOVED: By Joe Cruze that the State Secretary be given permission to transfer the equivalent of four weeks' annual leave pay from each officers accrued annual leave in order to assist with the payment of the above costs, as decided by the officers at this morning's meeting. SECONDED: John Ivancic. Arthur Casey raised the question of a possible separate appeal in relation to the costs awarded against him. However, Frank Belan stated that he considered that to be a personal matter and moved as follows: MOVED: By Frank Belan that Arthur Casey's report be removed from the Minutes. SECONDED: Derrick Belan. CARRIED UNANIMOUSLY. John Cornwell and Wayne Meaney spoke in support of the above resolutions." 47 The minutes show on their face, by the reference to Mr Casey's report being removed, that they are not a full and accurate account of what happened at the meeting. Mr Casey's evidence about that meeting, which I accept, is less bland: "Q. At the meeting in May you indicated you would appeal. What happened when you indicated your would appeal? A. There was a branch committee management meeting the night before. Frank gave a report about the defamation case. I supplemented his report by telling the Branch committee management about my decision about appealing. Frank got very aggressive with me and he said, "If you don't shut up I'll smash your face". Having said that John Ivanic and Peter Hearne jumped up out of their seats and started making menacing gestures directed towards me. I said something like, "Do you want to fight me here or do you want to fight outside". They sat down again. Then John Fitzgerald, who was the acting President of the Union, said, that there should be a meeting of the officials the following morning or as early as possible to try to find a way through this." Counsel for the plaintiffs submitted that the portion of the minutes which reads, "Arthur Casey raised the question of a possible separate appeal in relation to the costs awarded against him. However Frank Belan stated that he considered that to be a personal matter …" should be read as an indication of Mr Casey asking about an appeal, in the sense of a fundraising effort, being made in relation to the verdict against him, but the meeting deciding against it. I do not read the minutes that way. All the minutes show, and all that happened at that meeting, was that Mr Casey told the meeting about his proposed appeal (in the sense of an application for a higher court to reconsider a judgment), and the meeting indicated that he would not have the Union's assistance concerning that appeal. At no time, either at that meeting or at any other time, was Mr Casey told that payment of the verdict and costs ordered by Kirby J, or even of part of that verdict and costs, was his own responsibility. The Frank Belan Defamation Defence Fund 48 On 9 June 1999 a statewide delegates meeting of the Union was held at the Auburn RSL Club on 9 June 1999. Four or five hundred people attended. The delegates are Union representatives at individual workplaces. Delegates are entitled to receive a commission of 10% of all fees which they collect on their site. That commission is paid to them on an annual basis. On 9 June 1999 (but, according to Mr Derrick Belan, after the delegates meeting had closed) the delegates passed a resolution: "That delegates donate their commission and any other available finance to help pay for the legal costs associated with the defamation case involving Frank Belan." There was no suggestion at that meeting that the money raised would benefit Mr Belan, but not Mr Casey. Neither was there any mention at that meeting of Mr Belan, or anyone else, repaying the money which was raised. 49 The pressure on the NSW Branch from Mr Sword continued. A combined Committee of Management, Officers and staff meeting of the NUW was held on 30 June 1999 to hear a report from Mr Belan on the dispute between the National office and the NSW Branch. The minutes record: "Greg Sword would like to freeze the NSW funds and is looking for an opportunity to seek a court injunction. Legal advice sought by Frank Belan should be received in a day or two re s.202 agreement between National Office and the Branch. Frank Belan stated that whether intentionally or otherwise, someone here is giving out information about what is happening within the NSW Branch. If Greg Sword takes over, not one person working for the NSW Branch at present would keep his/her job. It is in everyone's interest to ensure that the NSW Branch does not collapse and its business should not be discussed with anyone. Frank also stated that he would protect the officers of the NSW Branch, but expects their loyalty." 50 To give effect to the resolution passed on 9 June 1999, individual delegates each signed a standard form authority, addressed to the Secretary of the NUW, NSW Branch, saying: "In accordance with the resolution carried by delegates at the State Wide Delegates meeting at Auburn RSL Club on Wednesday 9 June 1999, I being a delegate of the National Union of Workers, New South Wales Branch HEREBY AUTHORISE you to pay into a fund styled "Frank Belan Defamation Defence Fund" any commission on contributions that may be due to me. This authority is to operate until it is revoked by me, or until such time as such contributions are no longer required." Collection of those authorities did not begin until mid-September 1999. 51 Union officials knew that Mr Sword would challenge this raising of funds if he could, and so legal advice had been sought about the drafting of the Authority to Pay. The aim was to ensure that it could not be said that funds of the Union had been used to pay the verdict and costs, but rather that individual delegates had voluntarily decided to make available money which they were personally entitled to receive. 52 On 20 September 1999 a new bank account was opened at the Commonwealth Bank, called the "Frank Belan Defamation Defence Fund". It was opened on the bank form entitled "Authority for Unincorporated Clubs, Lodges and Society Accounts". The postal address nominated on the form was 3-5 Bridge Street, Granville, which is the address at which the NUW had its offices. The section of the form entitled "Persons Authorised to Operate on Account/s" was filled out by entries including: Name FRANK BELAN Official Position STATE SECRETARY The form continued: Method of Operation (Show method of operation eg Treasurer or one other to sign, any two to sign etc) Only one to sign Authority has been duly given by resolution passed at a legally constituted meeting of N.U.W. NSW BRANCH For the persons named, in accordance with the stated method of operation, on behalf of the said body to: [there followed a list of types of dealing between Banker and Customer] Authority has also been duly given by the same resolution for cheques, bills and promissory notes payable to the order of the said body and lodged for collection or for discount or negotiation and credit of proceed to its account's with the Bank to be solely endorsed by any one of the persons authorised to operate on the Account/s. … I certify that the resolution conferring the authorities herein contained has been passed in accordance with the Constitution, Rules or By-Laws of the said body presently in force. 53 Mr Belan signed the form twice, once in the place for "Signature of Chief Officer or Chairperson of (unincorporated) organisation", and again in the place for "Signature of Chief Officer or Chairperson of (unincorporated) organisation who signed previous authority". The opening deposit was made to the account on 20 September 1999, by paying in $2.00. Over the period from 21 September 1999 to 1 February 2001 other amounts totalling $125,938.88 were paid into that account. By far the largest deposits were a cheque for $97,964.24 paid into the account on 28 September 1999, and a deposit of $21,878.24 made to the account on 3 December 1999. The cheque for $97,964.24 deposited on 28 September 1999 was a cheque drawn on the bank account of the New South Wales Branch of the NUW. It represented the amount of commission which delegates had, up to that stage, agreed to donate. The deposit on 3 December 1999 of $21,878.24 included a cheque for $20,764.74 drawn on the New South Wales Branch of the NUW, which represented an additional amount of commission which delegates had donated. 54 Other amounts paid into the Fund are identified, in the accounting record kept concerning the Fund, as relating to particular numbered receipts. A sample of such a receipt is in evidence. It relates to an amount of $250 obtained from Union members at the Harris Coffee site. The receipt is headed "The Belan Team". After acknowledging receipt of $250, it says "being for Frank Belan Defamation Fund". Mr Casey describes the fundraising process as follows: "… all state NUW officials … went around to the sites and collected contributions. Money was scrounged from everywhere to pay for the cases." Mr Casey was personally involved in the raising of money in this way. He knew that money was being paid into a "Frank Belan Defamation Defence Fund" , but, "That was explained to me very simply that Arthur Casey was a nobody and we could not galvanise to collect money for Arthur Casey so we had to use Frank as an icon of the Union to capture the money … I asked Frank on a number of occasions around that time whether or not this was to be paid for the defamation case and he said it was." 55 As expected, Mr Sword and the federal body of the NUW challenged the assistance which had been given in paying the defamation verdict and costs from sources close to the Union's State Branch. Those proceedings were settled in July 2000 by consent orders whereby the proceedings were dismissed in return for undertakings from officials of the State Branch that, broadly, Union funds would not be used for payment of the liabilities of the defamation proceedings, and that delegates' commissions would be used for that purpose only in accordance with written authority and approval of the Branch Committee of Management. Mr Belan gave an undertaking that a sum of $61,000 would be deposited into the NUW New South Wales Branch general fund no later than Monday, 24 July 2000. The evidence does not disclose whether that undertaking was performed, or, if it was, from what source Mr Belan obtained the money. Source of Money for Payment of Liabilities Arising from Defamation Action 56 The amounts payable to satisfy the judgment and costs orders, and other legal expenses connected with the defamation actions were paid as follows: Date Amount Payee/butt entry Account drawn on 29 June 99 8500.00 T Molomby Campaign Fund 8 Jul 99 8500.00 T Molomby Campaign Fund 28 Sep 99 74,479.70 Edward Palmer Commonwealth Bank of Australia bank cheque 29 Sep 99 85,937.70 Denis Boner Commonwealth Bank of Australia bank cheque 30 Mar 00 31,620.00 W G McNally Frank Belan Defamation Defence Fund 30 Mar 00 700.00 Supreme Court of NSW Frank Belan Defamation Defence Fund 21 Mar 01 5,400.00 MM 6 months Campaign Fund 29 Mar 01 3,807.50 M May Campaign Fund 16 Aug 01 13,500.00 M May Campaign Fund 10 Apr 02 47,480.80 Iris Patricia Palmer Maurice May & Co trust account 57 "T Molomby" was the barrister who had appeared for Mr Belan and Mr Casey at the defamation trial. 58 The bank cheque for $74,479.70 payable to Mr Palmer was purchased by drawing $74,479.70 from the Campaign Fund bank account on 29 September 1999. The bank cheque payable to Mr Boner for $85,937.70 was purchased by drawing $85,937.70 from the bank account entitled "Frank Belan Defamation Defence Fund" on 29 September 1999. 59 "W G McNally" was the solicitor was had appeared for Mr Palmer and Mr Boner in the defamation action. The payment of $31,620 made to Mr McNally on 30 March 2000 was in payment of the costs of Mr Boner. The cheque for $700 payable to the Supreme Court, drawn on 30 March 2000, related to a filing fee for the Certificate as to Determination of Costs in the action brought by Mr Boner. 60 An assessment of the amount of costs payable to Mr Palmer did not issue until 22 December 2000. On 24 January 2001 Mr Palmer's certificate of assessed costs was filed in the Local Court, resulting in a judgment for $33,263.12, inclusive of the costs of registration. An application was made to the Local Court to pay that judgment debt by instalments, and was successful. The cheque drawn on 21 March 2001 for $5,400, the butt of which is marked "MM 6 months" was a cheque made payable to Maurice May & Co for six months of those instalments. The cheque for $13,500 drawn on 16 August 2001 in favour of Maurice May & Co was a further payment of instalments of the judgment debt concerning Mr Palmer's costs. The evidence does not make clear whether the costs of Mr Palmer which were being paid by instalments in this fashion were the costs in both actions which Mr Palmer had brought, or only the costs in the action which Mr Palmer had brought against both Mr Belan and Mr Casey. 61 The cheque for $3,807.50 made payable to Maurice May & Co on 29 March 2001 related to two invoices received from the Supreme Court which related to the defamation cases. The evidence does not establish whether they are part of the costs which were ordered to be paid, or whether they are part of the costs which Mr Belan and Mr Casey had to bear for running their own defence. 62 Iris Patricia Palmer is the widow of Mr Palmer. The cheque for $47,480.80 made payable to her on 10 April 2002 was in discharge of the amount remaining unpaid on the costs orders made in Mr Palmer's favour in both of the actions which he brought. Of that amount of $47,480.80, $23,813.12 was in discharge of the costs order for which Mr Belan and Mr Casey were both liable; the balance was for the costs order for which Mr Belan alone was liable. Mr Belan had died on 3 October 2001. The funds to meet the cheque payable to Mrs Palmer came from money which Maurice May & Co were holding for the estate of Mr Belan. 63 The judgment which Mr Palmer had obtained against Mr Belan alone, was also paid on 29 September 1999. It was paid by a bank cheque for $28,645.50, which was purchased with a cheque in that same amount drawn on the Campaign Fund bank account on 28 September 1999. 64 A costs consultant was engaged to act in the interests of Mr Belan and Mr Casey in assessment of the costs payable pursuant to the orders of Kirby J. An amount of $2,100 was paid to the costs consultant concerning the action brought by Mr Palmer, and a further $1,700 was paid concerning the action brought by Mr Boner. Each of those amounts was paid using money from the Campaign Fund. 65 As Maurice May & Co had acted on a contingent fee basis in connection with the defamation actions, they did not ask for, or receive, any payment of costs for having acted for Mr Belan or Mr Casey in those actions. 66 On 10 May 2000 a cheque for $10,000 was drawn on the bank account of the Campaign Fund, made payable to the Commonwealth Bank. The butt bears an entry that it was "for W G McNally". An employee of Mr May, who had responsibility for the day to day running of the defamation matters, recollects that there was a payment made when the appeal which was lodged against Kirby J's judgment was discontinued, but is not sure whether that cheque is the amount which was paid. Given the purpose of the Campaign Fund, and the absence of evidence about any other reason why a payment should be made from the Campaign Fund to Mr McNally, I would conclude that the $10,000 probably was paid in connection with discontinuation of the appeal. The Plaintiffs' Claim in these Proceedings 67 The plaintiffs claim 50% of each of the following amounts. 1. $74,479.70 paid to Mr Palmer on 28 September 1999. 2. $85,937.70 paid to Mr Boner on 29 September 1999. 3. Amounts totalling $32,320 paid to Mr McNally, and the Supreme Court, on 30 March 2000, being the amount payable under the costs order in favour of Mr Boner. 4. $35,110.87 said to be the amount, inclusive of the costs of the assessor, assessed as being payable to Mr Palmer in the matter in which both Mr Belan and Mr Casey were defendants. 5. $2,100 paid to the costs consultant concerning Mr Palmer. 6. $1,700 paid to the costs consultant concerning Mr Boner. Effect on Equitable Contribution of the Way in which the Judgment Debt was Discharged 68 It is a fundamental requirement for the availability of equitable contribution that the person claiming it has actually paid, or is about to be required to pay, an obligation from his own money. 69 The rationale of equitable contribution does not depend upon any implied contract but rather on "general principles of justice": Dering v Earl of Winchelsea (1787) 1 Cox 318 at 321; 29 ER 1184 at 1185. In Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342 at 352 Kitto J said that the reason for contribution existing both at law and in equity is, "… that payment by the one discharges not only himself but each of the others, and qui sentit commodum sentire debet et onus." (The Latin maxim translates as, "He who gains the advantage must also suffer the burden.") That payment by the person claiming contribution has been made, or is imminent, is an essential part of this rationale. 70 In Mahoney v McManus (1981) 180 CLR 370 at 378, Gibbs CJ (with whom Murphy and Aickin JJ agreed) held that an equity of contribution existed when sureties and a principal debtor were all being pressed to pay a debt, one surety put the principal debtor in funds so that the debt could be paid and the principal debtor paid it. On any precise legal analysis, the surety had not paid the debt yet, even so, the payment made by the surety was regarded as a payment made "under" the guarantee, and a right of contribution was available from the other sureties because of it. Their Honours said: "… the doctrine of contribution is based on the principle of natural justice that if several persons have a common obligation they should as between themselves contribute proportionately in satisfaction of that obligation. The operation of such a principle should not be defeated by too technical an approach to the question whether a surety has paid the creditor, when he has supplied moneys to the principal debtor for the purpose of making such payment." 71 In Cockburn v GIO Finance Ltd (No.2) (2001) 51 NSWLR 624 at 631 Mason P (with whom Davies AJA and Ipp AJA agreed) said: "The injustice prevented by an award of contribution or recoupment is the enrichment of the defendant at the expense of the plaintiff actually or imminently liable in part (contribution) or whole (recoupment): see generally Bonner v Tottenham and Edmonton Permanent Investment Building Society [1899] 1 QB 161 at 174, per Vaughan Williams LJ; Armstrong v Commissioner of Stamp Duties (1967) 69 SR (NSW) 38 at 47; 86 WN (Pt 2) (NSW) 259 at 266, per Walsh JA; Mahoney v McManus (1981) 180 CLR 370 at 388, per Brennan J. On this basis, the concept of unjust enrichment has been seen as the underlying principle. The right of contribution depends on matters of substance, not form." 72 In Burke v LFOT Pty Ltd [2002] HCA 17; (2002) 76 ALJR 749 at [40] McHugh J said that since the decision of Dering v Earl of Winchelsea in 1787, "It has never been doubted that the right of contribution depends upon matters of substance, not form." At [38] he explained the rationale by saying, "an order of contribution prevents the injustice that would otherwise flow to the plaintiff by the defendant being enriched at the plaintiff's expense in circumstances where they have a common obligation to meet the liability which the plaintiff has met or will have to meet." 73 At [41] McHugh J, after identifying relationships traditionally regarded as giving rise to an order for contribution, said: "More often than not, the relationships between the parties in those cases exhibit the characteristics commonly regarded as essential to establishing an entitlement to contribution, namely "a common interest and a common burthen" ( Ellesmere Brewery Co v Cooper [1896] 1 QB 75 at 79 per Lord Russell CJ). The nature of the relevant interest and burden is such that the discharge of the burden by one party constitutes a benefit to the other or others which, in fairness, the law cannot countenance them keeping." And at [46]: "The basic rationale of the right to contribution was consequently lacking – the discharge by one co-obligor of its liability to the principal which discharged the liability of the other." 74 The onus of establishing that the circumstances exist which warrant the making of an order for contribution is on the person who seeks such an order. Insofar as the verdicts and costs orders made against Mr Belan and Mr Casey were satisfied by payment from the Campaign Fund, I am not satisfied that the prerequisite for the existence of an equity of contribution, that Mr Belan has paid the verdict and costs from his own money, exists. 75 Insofar as the verdict and costs orders were paid from the Campaign Fund, they were paid with money at least most of which belonged, beneficially, to the current officials of the NUW. The only possible exception is that there is a possibility that the Campaign Fund might have contained some money of officials who had left, but not taken their contribution to the Campaign Fund with them. If that is so, those officials might have abandoned their interest in the Campaign Fund (in which case the continuing officials would have power to deal with it), or they might not have abandoned it (in which case they would retain their beneficial interests, their money would have been applied in payment of the judgment and costs without their consent, and both Mr Belan and Mr Casey would, subject to any statute of limitations, still be liable to reimburse them). Insofar as money belonging to continuing union officials, or over which the continuing union officials had a power of disposition, was spent in payment of the judgment and costs orders, those continuing union officials consented to its being spent in that way. 76 I am not satisfied that Mr Belan had any obligation to pay back, from his own funds, the amount of the Campaign Fund which was expended in this way. I accept that, when the question of using the Campaign Fund to pay the verdict and costs first arose, Mr Belan said that he would find a way to pay the money back – but I do not find that it was agreed that Mr Belan would be personally liable to reinstate the Campaign Fund. I am not satisfied that Mr Belan's reference to paying the money back meant anything more than that he would see to it that money was raised to replace whatever was taken out of the Campaign Fund. I am not satisfied that either Mr Belan, or the officials he was talking to, regarded Mr Belan as thereby entering into any legal obligation. No demand has been made for any repayment to be made by him, or by his estate, and no such payment has in fact been made by him, or his estate, in the period of over three and one half years since the Campaign Fund was first used to pay expenses connected with the defamation cases. The evidence of Mr Meehan and Mrs Campbell is to the effect that the Campaign Fund was to be used for the purpose of paying off the judgment and costs, for the benefit of both Mr Belan and Mr Casey. I am not persuaded that any of the other union officials took a different view. 77 Mr Belan was one of the contributors to the Campaign Fund. To this extent, Mr Belan's money would have been used in payment of verdict and costs. However, the amount in the Campaign Fund which was applied in payment of the verdict and costs was money which had accumulated over a period starting in 1995 (paragraph 37 above). During the whole of that time Mr Casey was a union official. The evidence did not try to prove in detail the contributions which Mr Belan and Mr Casey had respectively made to the Campaign Fund – but it was established that, on at least one occasion, deductions were made from Mr Casey's pay at the rate of $50 per fortnight. To the extent to which money of Mr Belan was used when the Campaign Fund was expended in payment of the verdict and costs, the plaintiffs have not proved that a greater amount of Mr Belan's money was used than the amount of Mr Casey's money which was similarly used from the Campaign Fund. 78 Insofar as the judgment and costs were paid from the Frank Belan Defamation Defence Fund, they were paid from an account on which Mr Belan was the sole signatory. Mr Aitken, counsel for the plaintiffs, submitted that the correct way to approach payments from this account was to identify whose money was in the bank account. He submitted that the legal owner of the money was Mr Belan, because the bank owed the debt constituted by the account to Mr Belan. He submitted that the purpose, of paying off the verdict and costs, was not a charitable purpose, so even if the contributors to the fund gave their money on the basis that it would be used for that purpose, there is no valid trust which could have required Mr Belan to use the money for that purpose. There being no trust, and the legal owner of the money being Mr Belan, expenditure of money in the bank account is the same as expenditure of Mr Belan's own money. Hence, he submits, the plaintiffs have a right of contribution concerning the payments of verdict and costs made from the Frank Belan Defamation Defence Fund. 79 That Mr Belan was the sole signatory of the account does not mean, however, that the money in the account can be treated for the purpose of the law concerning contribution in the same way as money in his personal bank account. The contributions to the Frank Belan Defamation Defence Fund were made by union delegates and other people on the basis that the money would be used to pay the verdict and costs. Those people were not making a gift to Mr Belan to be used as he pleased. Insofar as money in the Frank Belan Defamation Defence Fund was raised from delegates, those delegates were aware that the purpose of the fundraising was to pay off the verdict and costs, and that the verdict and costs had been awarded against both Mr Belan and Mr Casey. Insofar as contributions to the Frank Belan Defamation Defence Fund were from donations, the receipt for those donations was issued in the name of "the Belan Team", not of Mr Belan personally and Mr Casey was a member of "the Belan Team". 80 In all these circumstances, it is only in a very technical sense that it can be said that it is Mr Belan who has borne the burden of making the payment which has relieved Mr Casey. As a matter of substance (and it is substance which matters in deciding whether there is an equity of contribution, not form, or technicality), the payment of verdict and costs which was made from the Frank Belan Defamation Defence Fund was made by the contributors to that fund, not by Mr Belan. This is so even if there was no enforceable trust to require the money to be used for that purpose. The payment of verdict and costs from the Frank Belan Defamation Defence Fund was made in accordance with the intentions and authority of the contributors to the Fund. Mr Belan had no obligation to reimburse the contributors to the Fund. To the extent that the verdict and costs were paid from the proceeds of fundraising, Mr Belan is none the poorer in consequence of the verdict and judgment having been paid. Hence, it could not be said that Mr Casey has been unjustly enriched at the expense of Mr Belan, as a result of the verdict and costs having been paid, in part, from the Frank Belan Defamation Defence Fund. In all these circumstances, the rationale for the existence of an equity of contribution does not exist so far as the payments from the Frank Belan Defamation Defence Fund are concerned. In my view, no equity of contribution arises by virtue of the payments which were made from the Frank Belan Defamation Defence Fund. 81 It follows that it is only to the extent of the $23,813.12 which was paid from funds belonging to the Estate of Mr Belan (see paragraph 62 above) that an equity of contribution might possibly exist. Whether such an equity of contribution actually exists depends upon whether there is any reason arising from the rule in Merryweather v Nixan (1799) 8 TR 186; 101 ER 533 why such an equity of contribution should not exist, and on whether any claim for contribution has been made too late to be enforceable. I now turn to these matters, and to whether contribution can be claimed on any basis other than equitable contribution. The Limitation Argument 82 Mr Casey claims that the present proceedings are statute barred. There had been no cross-claim brought by Mr Belan against Mr Casey, in the proceedings before Kirby J, seeking contribution. To draw together the dates relevant to the limitation argument, the defamatory publications which were the foundation of Kirby J's judgment, were made in the latter part of 1994. Kirby J gave his judgment on 12 March 1999. These present proceedings were begun on 8 August 2001. Mr Casey was served with the proceedings when he was in the second week of new employment he had entered, working for Mr Sword's team at the National body of the NUW. 83 The following provisions of the Limitation Act 1969 are relevant: "9. Nothing in this Act affects the rules of equity concerning the refusal of relief on the ground of laches acquiescence or otherwise. … 14(1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims: (a) a cause of action founded on contract (including quasi contract) not being a cause of action founded on a deed, … (2) This section does not apply to: … (b) a cause of action for contribution to which section 26 applies 17(1) An action on a cause of action on a judgment is not maintainable if brought after the expiration of a limitation period of twelve years running from the date on which the judgment first becomes enforceable by the plaintiff or by a person through whom the plaintiff claims. 23 Sections 14 … 17 … do not apply, except so far as they may be applied by analogy, to a cause of action for specific performance of a contract or for an injunction or for other equitable relief. 26(1) An action on a cause of action for contribution under subsection (1) of section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 is not maintainable if brought after the first to expire of: (a) a limitation period of two years running from the date on which the cause of action for contribution first accrues to the plaintiff or to a person through whom the plaintiff claims, and (b) a limitation period of four years running from the date of the expiration of the limitation period for the principal cause of action. (2) For the purposes of paragraph (a) of subsection (1), the date on which a cause of action for contribution first accrues is: (a) if the plaintiff in the action for contribution or a person through whom the plaintiff claims is liable in respect of the damage for which contribution is claimed by judgment in a civil action or by arbitral award---the date on which the judgment is given or the award is made, whether or not, in the case of a judgment, the judgment is afterwards varied as to quantum of damages, or (b) if, in a case to which paragraph (a) does not apply, the plaintiff in the action for contribution or a person through whom the plaintiff claims makes an agreement with a person having a cause of action for the damage for which the cause of action for contribution arises, which agreement fixes, as between the parties to the agreement, the amount of the liability in respect of that damage of the plaintiff in the action for contribution or a person through whom the plaintiff claims---the date on which the agreement is made. (3) In paragraph (b) of subsection (1), the expression "the limitation period for the principal cause of action" means the limitation period fixed by or under this Act or by or under any other enactment (including an enactment repealed or omitted by this Act) for the cause of action for the liability in respect of which contribution is sought. (4) Nothing in this section affects the construction of section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 ." 84 Section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 says: "(1) Where damage is suffered by any person as a result of tort (whether a crime or not) - … (c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought. (2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity. 85 Upon its true construction, section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 does not make available to a defendant tort-feasor in an action for contribution any time limitation which would have been available to him in an action of tort brought against him by the injured party. In other words, paragraph (c) of section 5(1) should be read without the importation of any temporal element into it, or as if the words "at any time" were present after the words "if sued": Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213. As Windeyer J put it in Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 at 221: "… the statute of limitations does not begin to run in favour of a third party tort-feasor against whom a claim for contribution is made, until after the liability of the original tort-feasor has been ascertained; for it is only then that the right to contribution arises." 86 Thus, the only limitation period which is relevant to a claim for contribution made under section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 is the limitation period arising under section 26 Limitation Act 1969. 87 In the present case, the statutory right of contribution which Mr Belan had under section 5 first accrued on the date Kirby J gave his judgment, 12 March 1999. As these proceedings were begun more than two years after that date, they are statute barred insofar as they seek contribution under section 5. That conclusion was not really argued against by counsel for the plaintiffs in these proceedings. Rather, he submitted that there is a cause of action for contribution at law or in equity, independently of the Law Reform (Miscellaneous Provisions) Act 1946. To evaluate that argument some of the historical background of contribution at law and equity needs to be traced, as does its application to joint tortfeasors. Contribution at Law 88 Where several people with interests in land were liable to meet some types of obligation relating to the land, but a judgment for the whole obligation was obtained against just one of them, that person could take proceedings in the common law courts, by a writ of scire facias or a procedure of audita querela, to achieve the result that execution was levied only for his proper share: Sir Will. Harbert's Case (1584) 3 CoRep 11b; 76 ER 647; Dering v Earl of Winchelsea (1787) 1 Cox 318 at 321; 29 ER 1184 at 1185; Bonner v Tottenham & Edmonton Permanent Investment Building Society [1899] 1 QB 161 at 175 per Vaughan Williams LJ. The rise of the action of indebitatus assumpsit provided another basis on which common law courts could enforce contribution, concerning obligations not necessarily related to land. This was done by the device of implying a promise, on the part of a defendant from whom contribution was sought, to pay the appropriate share. 89 Merryweather v Nixan (1799) 8 TR 186; 101 ER 1337 was such an action seeking contribution on the basis of an implied assumpsit. In a previous action, both Merryweather and Nixan had been sued by one Starkey. Starkey's claim was an action on the case, for damage to his reversionary estate in a mill. His claim included a count in trover, for the machinery belonging to the mill. He recovered a judgment, and levied the whole of it against Merryweather. Merryweather thereupon brought an action against Nixan for contribution, on the basis of an implied assumpsit, grounding an action for money paid by Merryweather to the use of Nixan. The report states, at TR 186, ER 1337: "At the trial, before Mr Baron Thomson, at the last York Assizes, the plaintiff was nonsuited, the learned Judge being of opinion that no contribution could by law be claimed as between joint wrong-doers; and, consequently, this action, upon an implied assumpsit, could not be maintained on the mere ground that the plaintiff had alone paid the money which had been recovered against him and the other defendant in that action." 90 The reported case is a motion to set aside the nonsuit. The totality of the report of the reasons given is: "Lord Kenyon, Ch J said, there could be no doubt but that the nonsuit was proper: that he had never before heard of such an action having been brought, where the former recovery was for a tort: that the distinction was clear between this case and that of a joint judgment against several defendants in an action of assumpsit: and that this decision would not affect cases of indemnity, where one man employed another to do acts, not unlawful in themselves, for the purpose of asserting a right. Rule refused. The case of Philips v Biggs , Hard. 164, was mentioned by Law, for the defendant, as the only case to be found in the books in which the point had been raised; but it did not appear what was ultimately done upon it." 91 Cases in the nineteenth century explored the circumstances in which contribution was, or was not, possible between tortfeasors. Wooley v Batte (1826) 2 Car P 417; 172 ER 188 was an action in assumpsit, seeking contribution. The plaintiff and the defendant were partners in operating a stagecoach. A passenger had recovered a verdict against the plaintiff, arising from the negligence of the coachman (the plaintiff not being personally present at the time of the accident). The plaintiff paid the judgment, and sought contribution. He succeeded. There are no reasons given for the judgment. However two arguments were put by counsel – the first that there was no personal fault in the plaintiff (ie the plaintiff's liability was entirely a vicarious liability), the second that the passenger could just as easily have sued in assumpsit as in tort, in which case there would have been no doubt that the plaintiff could recover contribution. 92 Pearson v Skelton (1836) 1 MW 504; 150 ER 533 was a case whose facts were not materially different to those of Wooley v Batte. Contribution was opposed on two grounds – first, that an action for contribution did not lie between tortfeasors, and, second, that because the plaintiff and defendant were partners the proper remedy was a remedy in equity seeking account. The plaintiff was nonsuited at trial, and on a motion to set aside the nonsuit the trial judge's decision was confirmed, but only because of the second point relied on. Parke B said, "the first objection made at the trial does not apply". 93 Adamson v Jarvis (1827) 4 Bing 66; 130 ER 693 was an action in the Court of Common Pleas, being an action on the case brought by an auctioneer against a person on whose instructions he had sold goods. The goods did not belong to that person notwithstanding that he had represented to the plaintiff that he was entitled to dispose of them. The auctioneer had been held liable at the suit of the true owner, for the value of the goods. The auctioneer succeeded at trial. The reported case is a motion in arrest of judgment which the defendant brought, and which failed. In substance there were two reasons for its failure. The first was that there was an implied indemnity in the contract whereby the defendant engaged the plaintiff to act as an auctioneer, and hence the last proposition of Lord Kenyon in Merryweather v Nixan applied. The second was that: "… the rule that wrongdoers cannot have redress or contribution against each other is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act." (At 4 Bing 73; 130 ER 696) 94 Betts v Gibbins (1834) 2 Ad E 37; 111 ER 22 was an action in Kings Bench, in assumpsit. The plaintiffs were carriers of goods. They carried goods of the defendant, which the defendant had sold to A. On the defendant's direction, they refused to deliver those goods to A. A sued the plaintiffs for conversion, and, upon the defendant declining to indemnify the plaintiff, the plaintiff settled the action. By this action, the plaintiff sued the defendant in assumpsit, seeking indemnity, alleging an implied promise to indemnify. The plaintiff succeeded, on the ground that there was nothing clearly illegal in the defendant telling the plaintiff not to deliver the goods, which would prevent the implication of the promise to indemnify. 95 Palmer v Wick and Pultneytown Steam Shipping Company Limited [1894] AC 318 was an appeal to the House of Lords from Scotland. Hence any remarks in it about English law were obiter dicta. A workman unloading a ship had been killed. His widow brought an action against the owner of the ship alleging that defective equipment on the ship had caused the death, and against the stevedore responsible for unloading the ship. A joint and several judgment was entered against them. The shipowner paid the whole of the judgment, and sought contribution from the stevedore. The Scottish court allowed it, and from that decision an appeal was brought to the House of Lords. The trial had been before a jury, so no explanation for the basis upon which the shipowner had been found negligent was available. Lord Herschell LC noted, at 322, that the consequence of this was that the jury might have found their verdict of negligence not on the basis of some personal fault in the shipowners, but on the basis of vicarious liability for an action of the Master. He said, at 324: "Much reliance was placed by the learned counsel for the appellant upon the judgment in the English case of Merryweather v Nixan 8 TR 186. The reasons to be found in Lord Kenyon's judgment, so far as reported, are somewhat meagre, and the statement of the facts of the case is not less so. It is now too late to question that decision in this country; but when I am asked to hold it to be part of the law of Scotland, I am bound to say that it does not appear to me to be founded on any principle of justice or equity, or even of public policy, which justifies its extension to the jurisprudence of other countries." 96 He went on to refer to the passage I have quoted at paragraph 93 above from Adamson v Jarvis, and to say: "If the view thus expressed by the Court of Common Pleas be correct (and I see no reason to dissent from it) the doctrine that one tortfeasor cannot recover from another is inapplicable to a case like that now under consideration." 97 Lord Watson decided the case by reference to the law of Scotland, but continued, at 333: "I have not hitherto noticed the English case of Merryweather v Nixan 8 TR 186. Assuming it to be an authority establishing the general law for which the appellant contends – a proposition which seems to admit of doubt – I can only regard it as a positive rule of the common law of England, which is inconsistent with, and ought not to override, the law and practice of Scotland. The merits of the rule are not, in my opinion, such as to commend it to universal acceptation." 98 Lord Halsbury, at 333, said: "I concur with the proposition that the case of Merryweather v Nixan 8 TR 186 has been so long and universally acknowledged as part of the English law that even if ones own judgment did not concur with its principle it would be now too late to question its applicability to all cases in England governed by the principle therein enunciated; but I am not prepared to differ from the views entertained by the Lord Chancellor and my noble and learned friend Lord Watson when dealing with the jurisprudence of Scotland." Lord Shand (at 334) agreed with Lord Herschell LC and Lord Watson. 99 The Englishman and The Australia [1895] P 212 arose from a collision between a ship, and a tug and its tow. The ship sank, and the tug was damaged. The owners of the ship sued both the tug and its tow, while the owners of the tug counterclaimed against the ship. At trial, all three vessels were found to blame. The tug and its tow were each found liable to pay for the damage sustained by the ship. The owners of the tow sought to pay only the difference between the amount which the ship was liable to pay to the tug, and the amount which the tug was liable to pay to the ship. That would, in effect, have given them the benefit of the counterclaim which the tug had made against the ship. The claim by the owners of the tow took the form of a claim that, upon payment of the difference between the amount which the ship was liable to pay to the tug, and the amount which the tug was liable to pay to the ship, they were entitled to an assignment, under Part 5 of the Mercantile Law Amendment Act 1856, of the judgment which had been given against the tug. The application was rejected, as a matter of construction of the statute, because it was only by virtue of the judgment that the owners of the tug, and the owners of the tow, became co-debtors, and the statute required them to be co-debtors prior to judgment. As well, however, Bruce J held that the application was not within the mischief of the statute, because the statute was never intended to apply to cases where there was no liability to contribute as between persons jointly liable. In that context, he held that the rule in Merryweather v Nixan would prevent contribution between the tug and the tow. Bruce J said, at 218: "An examination of the cases has led me to the conclusion that the actual point decided in Merryweather v Nixan 8 TR 186 that an implied indemnity does not arise as between joint tortfeasors, simply by reason of the payment by one of the whole of the joint liability, has never been questioned. Circumstances may exist, as in some of the cases referred to, which gives rise to an implied indemnity, or there may be an express indemnity, and where there is such an indemnity implied or express, it may be enforced, unless the contract relates to the doing of an act which is illegal, and must be presumed to have been known to be illegal by the person seeking to enforce the indemnity. This view of the law is quite consistent with the observations of Lord Herschell LC in the case of Palmer v Wick and Pultneytown Steam Shipping Co Ltd [1894] AC 318 to which attention was directed in the argument. The Lord Chancellor is not speaking of the circumstances which may raise an implied promise to indemnify: he is addressing himself to the consideration of the alleged doctrine that one joint tortfeasor never can recover from another, and he expresses the opinion that in cases where an express or implied indemnity exists, the doctrine can only apply to prevent the tortfeasor from recovering when he must be presumed to have known that he was doing an unlawful act. I do not think that the observations were intended to mean that, wherever the act done by joint tortfeasors was not in itself unlawful, an indemnity is to be implied from the mere fact that one tortfeasor has paid, under compulsion, the whole damages arising from the tort. So to lay down the law would be, as it seems to me, to overrule the exact point decided in Merryweather v Nixan . That, it is clear, Lord Herschell did not intend to do, because he says, "it is now too late to question that decision in this country". In fact, Lord Herschell does not seem to have done more than express his approval of the exposition of the law contained in the judgment of Best CJ in the case of Adamson v Jarvis 4 Bing 66." 100 By the end of the nineteenth century the position was summarised as follows, in Shirley's Selection of Leading Cases in the Common Law, 5th edition, 1896: "There is no contribution between defendants in tort. In contract there is. If there are two sureties, and one of them is made to pay the whole debt, he can sue his brother surety for half of what he has paid. In such a case there is no turpis causa . But the rule that one tortfeasor cannot sue another for contribution does not extend to the case where the former has acted quite innocently, and was simply obeying what he believed to be the lawful instructions of his employer. Such a person may claim not merely contribution, but an absolute indemnification. If A orders B to drive cattle out of a field, and in obeying the order B unwittingly commits a trespass, A must indemnify him; but it would be different if the order given and obeyed were to assault C without rhyme or reason, because B must have known that A had no business to tell him to do that ( Pearson v Skelton (1836) 1 M & W 504; Betts v Gibbins (1834) 2 Ad & E 57; 5 NM 64; Dixon v Fawcus (1861) 30 LJQB 137; 3 El & El 537.)" 101 The reference to "turpis causa" is to the maxim "ex turpis causa non oritur actio". It reflects one theme in the nineteenth century cases in this area, that a joint wrongdoer had a liability for all the damage he caused, and that it was no part of the law's task to relieve a wrongdoer from the consequences of his own wrongdoing. The exceptions which developed to the general rule in Merryweather v Nixan were ones where the tortfeasor had a legal liability, but arising from circumstances where the conduct of the tortfeasor was not so reprehensible that a court would not help him. Application of Merryweather v Nixan to Libel 102 Common law courts applied the rule in Merryweather v Nixan to cases where contribution was sought between two people who had been involved in the publication of a libel. Colburn v Patmore (1834) 1 CM&R 73; 149 ER 999 was an action brought by the proprietor of a journal, who had been convicted of publishing a libel and fined. He brought an action on the case against the employee who had inserted the libel, and at trial obtained a judgment from the jury. That judgment was set aside. Lord Lyndhurst CB said, at 83 of 1 CM&R; 1003 of 149 ER: "I know of no case in which a person who has committed an act, declared by the law to be criminal, has been permitted to recover compensation against a person who acted jointly with him in the commission of that crime. It is not necessary to give any opinion upon this point, but I may say, that I entertain little doubt that a person who is declared by the law to be guilty of a crime cannot be allowed to recover damages against another who has participated in its commission." Other Barons agreed. (Another reason why the plaintiff did not keep his verdict was because of a deficiency in the pleadings.) 103 Moscati v Lawson (1835) 7 Car P 32; 173 ER 14 was an action against the printer of the Times for libel. The defendant called as a witness one of the proprietors of the Times, and objection was taken to his giving evidence. Alderson B said, at 35 of 7 Car P, 16 of ER: "That may be so, but he is for all that a competent witness, because he is not liable to contribution." 104 In Shackell v Rosier (1836) 2 Bing (NC) 635; 132 ER 245 the plaintiff had been held liable in damages for publication of a libel. The plaintiff sued the present defendant to recover an indemnity for those damages, relying upon a representation which the defendant had made to the plaintiff before publication of the libel that the contents of it were accurate, and upon an express agreement which the defendant had made with the plaintiff, after the libel action against the plaintiff had been commenced, to indemnify the plaintiff for all damages, costs and expenses involved in defending the action. The plaintiff's action failed. Part of the reason was because the consideration for a promise to indemnify, as alleged in the plaintiff's pleading, included the plaintiff having published the libel at the request of the defendant; that amounted to an illegal consideration, which was not severable. Park J said, at 648 of 2 Bing (NC), 250 of ER: "It would be productive of great evil if the courts were to encourage such an engagement as this, and thereby hold out inducement to the propagation of illegal and unfounded charges. I do not find that the doctrine laid down in Merryweather v Nixan has ever been shaken. That cause was tried by an eminent judge, Mr Baron Thomson: he laid down the position, that no contribution could be claimed at law as between wrongdoers, and that was adopted in Banc by Lord Kenyon. Wooley v Batte , which was tried before me at Hereford, does not bear on the case; but in Colburn v Patmore (1 Cr. Mee & Ros, 83) Lord Lindhurst says, "I know of no case in which a person who has committed an act, declared by the law to be criminal, has been permitted to recover compensation against a person who has acted jointly with him in the commission of the crime. It is not necessary to give any opinion on this point; but I may say, that I entertain little doubt that a person who is declared by the law to be guilty of a crime cannot be allowed to recover damages against another who has participated in its commission." Vaughan & Bosanquet JJ each agreed that the consideration was illegal. 105 W H Smith & Son v Clinton (1908) 99 LT 840 concerned a general indemnity against the consequences of publishing libels, which was given by the publisher of a magazine to the printer of that magazine. Coleridge J refused to enforce the indemnity. He said, at 841: "It was very early discussed whether there was any implied contractual relation between two joint tortfeasors, so as to entitle one to contribution against the other, where one suffered all the consequences of the wrongdoing. The result of the various decisions seems to be that where one person requests another to commit or where they jointly commit an indifferent act, of which the illegality does not appear, but which may subsequently be proved to be tortious, the contractual relation may arise; and where one party induces another party by fraud to commit a tortious act and that other party does not in fact know and need not be presumed to know that he was doing an unlawful act, he may have redress or contribution. The principle, however, of there being no contribution between tortfeasors is confined to cases where the party seeking redress or contribution knew or may be presumed to know that he was committing an unlawful act. Moreover, the right to redress or contribution is not excluded in those cases where a tort is knowingly committed by the act of a servant without any fault or turpitude in the master. The principle of law applicable to these implied contractual relations seems to me to be equally applicable to an express contract of indemnity. To print or publish a libel is an illegal act. Everyone who prints or publishes a libel or authorises its printing or publishing by his agent is individually and personally committing an illegal act. In ordinary cases a master is not presumed to authorise the wilful act of his servant in committing a tort, but the proprietor of a printing business is presumed to authorise the insertion of a libel in a newspaper published by him. There is presumed authority given by the proprietor of a publishing business to his agents to publish everything, libellous or not, which is in fact published by the business. He may not plead ignorance of the act of his servant. He must be presumed to have known of the publication, and that it was defamatory. To indemnify against publishing a libel is to indemnify against doing a wrongful and illegal act; and it differs from the various forms of contract of assurance against the illegal acts of others in that the indemnity is given by one participator in the wrongful and illegal act to another. This, then, being an action brought by one party who has committed a wrongful and illegal act against another party who has committed the same wrongful and illegal act, to indemnify the one party in respect of the wrongful or illegal act committed by both, I am of opinion that such a contract cannot be enforced by law." It would inevitably follow from this reasoning that neither could contribution be claimed between the joint publishers of defamatory matter. 106 In London Association for Protection of Trade v Greenlands Limited [1916] 2 AC 15 Lord Atkinson at 31-32 said, of the publishers of a libel: "Each of the joint wrongdoers must be presumed to have known the wrongful nature of their joint act. There cannot be any contribution between them: Adamson v Jarvis (1827) 4 Bing 66; Palmer v Wick and Pultneytown Steam Shipping Co [1894] AC 318, 324." 107 The same view was taken in the United States. In Arnold v Clifford (1835) 2 Sumner 238 Story J (then an Associate Justice of the Supreme Court) said, of the enforceability of a contract to indemnify against a libel: "I have not the least doubt upon this point. A promise to indemnify another for doing a public wrong, or for committing a public crime, is against public policy, and is void in law. It is common learning, that among tort-feasors who are knowingly such, there can be no contribution for damages recoverable against any one of them, even though there be a promise of indemnity or contribution. A fortiori , the same doctrine applies to cases of indemnity for the commission of a public crime. No one ever imagined, that a promise to pay for the poisoning of another, was capable of being enforced in a court of justice. It is universally treated as illegal, it being against the first principles of justice, and morals, and religion. The man, who is hired to publish a libel against another, is guilty of an offence equally reprehensible in morals, though not so aggravated in its character; for the publication may not only be ruinous to the reputation of the individual aspersed; but may involve an innocent family in agonising distress, and, perhaps, destroy its peace forever. There is no such right recognised in civil society, or at least in our forms of government, as the right of slandering or of calumniating another. The liberty of the press does not include the right to publish libels. Much less does it include the right to be indemnified against the just legal consequences of such publications." Equity and Joint Wrongdoers 108 Courts of Equity followed the law so far as contribution between joint tortfeasors was concerned. Lingard v Bromley (1812) 1 V & B 114; 35 ER 45 was a case where the plaintiff and defendants were assignees of a bankrupt. They had declined to join in a conveyance of some of the bankrupt's property. The property was later sold for a lesser sum than was available at the time of the conveyance in which they had refused to join. They were ordered to pay the shortfall. The amount of that shortfall was paid by the plaintiff, who in this action sought contribution. Though contribution was ordered, Sir William Grant MR rejected the argument that contribution should be denied because there was no contribution between wrongdoers by accepting the principle, but denying its application to the instant case. He said, at 116-117 of V & B, 45 of ER: "The first defence made in this case seems to me to be quite untenable. Where entire Damages are recovered against several Defendants guilty of a Tort, a Court of Justice will not interfere to enforce contribution among the Wrong-doers: but here is nothing but the Non-performance of a civil obligation." 109 Attorney General v Wilson (1840) Cr & Ph 1; 41 ER 389 concerned the Corporation of Leeds, a body incorporated by letters patent, which had property invested in the name of trustees. In 1835 the Mayor and Aldermen, alarmed that a Bill then in the House of Commons would throw municipal government into the hands of the wrong sort of people, resolved that certain identified property of the corporation should be transferred to certain named people, for their absolute use and benefit. That having been done, the property was applied for various purposes that the Aldermen approved of. A new Corporation of Leeds was created under the Municipal Corporation Reform Act 1835. It brought proceedings to recover the assets which had been disposed of. It sued the former trustees in whose name the property had been vested, and some, but not all, of the Aldermen who had been involved in the transfer. Those who were sued submitted that everyone who had been involved in the transfer should have been made a defendant. Lord Cottenham LC rejected that contention, saying (at 28 of Cr & Ph, 398 of ER): "In cases of this kind, where the liability arises from the wrongful act of the parties, each is liable for all the consequences, and there is no contribution between them, and each case is distinct, depending upon the evidence against each party. It is, therefore, not necessary to make all parties who may more or less have joined in the act complained of; nor would anyone derive any advantage from their all being made defendants, because, as the decree would be general against all found to be guilty of the charge, it might be executed against any of them." 110 Spence's Equitable Jurisdiction of the Court of Chancery (1846) page 664 sets out the then view: "By the Roman law no action could be brought by one wrong doer against another, in respect of a tortious act, in which they had both engaged – " si duo dolo malo fecerint invicem de dolo non agent ". This doctrine was adopted by the Court of Chancery, and it has been considered as a sufficient answer to a claim for contribution by one wrong doer against another." The Plaintiffs' Argument 111 The plaintiffs do not seek to show that the facts of the present case fall within one of those situations where the common law would have permitted contribution between joint tortfeasors. Rather, the plaintiffs submit that notwithstanding the rule in Merryweather v Nixan, they are entitled to contribution because the judgment itself created a joint obligation of Mr Belan and Mr Casey, and that judgment can be the foundation for the making of an order for equitable contribution. They rely on Trade Practices Commission v Manfal Pty Ltd (No.3) (1991) 33 FCR 382, Jones v Mortgage Acceptance Nominees Ltd (1996) 63 FCR 418 and Sky Channel v Tszyu [2000] NSWSC 838 to reach that conclusion. 112 In Trade Practices Commission v Manfal Pty Ltd (No.3) (1991) 33 FCR 382 Lee J had before him proceedings begun by the Trade Practices Commission against Manfal, and five natural people. The proceedings sought an order under section 87 Trade Practices Act 1974 (Cth) that Manfal pay compensation to six named consumers for loss they sustained by an alleged contravention of section 52A of the Trade Practices Act 1974 (Cth), and to have the natural people made jointly and severally liable with Manfal to pay that compensation. After the commencement of the proceedings, Manfal went into liquidation. The Trade Practices Commission sought leave to discontinue the proceedings against Manfal. The individual respondents opposed the granting of that leave. Section 52A(1) at that time provided: "A corporation shall not, in trade or commerce, in connection with the supply or possible supply of goods or services to a person, engage in conduct that is, in all the circumstances, unconscionable." The liability of the individual respondents could be established only if the court found that they were involved in a contravention of section 52A by Manfal. 113 Lee J refused leave to discontinue. He noted, at 385, the possibility that there might be rights of contribution between the various respondents arising out of a coordinate liability imposed upon those respondents by the Trade Practices Act. He recognised that there was a question about whether any principle of public policy operated to deny contribution between people involved in a contravention of the Act by a corporation, and the corporation, as joint wrongdoers, but (following the decision of French J in Re: La Rosa; ex parte Norgard v Rodpat Nominees Pty Ltd (1991) 31 FCR 83 at 90-92) held that any such question should be decided upon arguments submitted after trial of the action. 114 His Honour's reasons why it was undesirable to allow leave to discontinue began by noting that, if leave to discontinue against Manfal were granted, it would only provoke an application by the individual respondents for leave to bring a cross-claim against Manfal, notwithstanding that it was in liquidation. If such leave were refused the respondents would have a less certain basis for making a claim for contribution against Manfal than would arise if Manfal were to remain in the proceedings, and the proceedings were to result in a joint judgment. If the leave to proceed were to be granted, that problem concerning contribution would not arise, but there would be procedural complexity and delay in the matter proceeding with cross-claims by the individual respondents against Manfal rather than if Manfal were to remain a respondent. At 386-387, his Honour said: "Upon the entry of judgment, and irrespective of the grounds of liability relied upon at law to obtain the judgment, the entry of judgment will create a coordinate liability between Manfal and the relevant respondents in respect of the sum recoverable under the judgment on behalf of each consumer. The amount of the loss or damage in respect of which judgment is entered will be the amount of loss or damage suffered by reason of the conduct of Manfal in contravention of the Act, not by reason of the conduct of a person involved in that contravention. The right of action and the quantum of the remedy flows solely from the conduct of Manfal in contravention of the Act. It will be the same liability which gives rise to a joint judgment against Manfal and the other respondents. There will be a common interest and common burden under such a judgment. (See Munkman , Quasi Contract , p 81.) Although such conduct by Manfal must be proved in order to obtain an order for compensation under section 87(1A) against a person involved in the contravention, the absence of Manfal as a party to the proceedings would mean that there could be no judgment binding upon Manfal. However, the discharge of liability under the judgment by any one of the individual respondents would discharge the consumer's claim for the amount of loss or damage suffered by reason of Manfal's conduct and, therefore, any claim against Manfal. If Manfal were a party to that judgment, there would be no question that it would be obliged to make proportionate contribution to any other party to the judgment who voluntarily or involuntarily discharged the judgment and it would be entitled to receive proportionate contributions from all other parties to the judgment if it discharged the judgment. Whatever may have been the situation at law and in equity in respect of rights of contribution prior to the entry of judgment, the entry of a joint or joint and several judgment creates a common burden between the parties to the judgment, although execution of such a judgment may be directed or levied against and satisfied by one of the parties to the judgment. Once the co-ordinate liability of the parties has been established in a joint judgment, a new burden is created to which rights of contribution are attached. It follows that all parties to the judgment must bear the judgment equally and no one of the judgment debtors is able to profit from the discharge of that equal responsibility by another. (See Randall Storey's Commentaries on Equity Jurisprudence ( 3rd English ed), par 493.)" 115 In Jones v Mortgage Acceptance Nominees Ltd (1996) 63 FCR 418 one respondent (Mr Done) had been found liable to the applicants for breach of fiduciary duty, but he had not been sued for negligence. If Mr Done had been sued for negligence, he would also have been liable for negligence. Davies J held that Mr Done could claim contribution from other respondents who had actually been held liable for negligence. The first basis upon which this conclusion was reached was that, as a matter of the construction of section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act, Mr Done was "any tortfeasor liable in respect of that damage", even though he had not actually been sued in tort. If that construction were wrong, Davies J held that Mr Done would still be entitled to claim contribution because, as his Honour put it at 421, "If there were a gap in the operation of section 5(1) of the Law Reform (Miscellaneous Provisions) Act as counsel for ABCOS suggests, I am satisfied that both the common law and equity would, at the present date, step in to fill the gap." 116 He said that Mr Done and the other respondents were all under a common or coordinate obligation, notwithstanding that Mr Done had been sued for breach of fiduciary duty and the others had been sued in negligence. He continued, at 422: "Common law and equity earlier refused relief by way of contribution in a case such as this not because of the absence of a common or coordinate obligation but because it was considered, as a matter of principle, that such relief should not be granted to wrongdoers. In this the common law and equity followed Roman law. Spence's Equitable Jurisdiction of the Court of Chancery (American ed, 1846), Vol 1, pp 663-664 put the matter thus: "By the Roman law no action could be brought by one wrong doer against another, in respect of a tortious Act, in which both had been engaged, — ` Si duo dolo malo fecerint invicem de dolo non agent ' (Dig iv 3.36). This doctrine was adopted by the Court of Chancery (` Fraus non est fallere fallentem ,' Cary, p 18), and it has been considered as a sufficient answer to a claim for contribution by one wrong doer against another: Attorney-General v Wilson , 1 Craig & P 28; Pearson v Skelton , 1 Mees & Wels 504 and Merryweather v Nixon [sic], 8 TR 186." Now that the principle enunciated in the cases mentioned in that passage, particularly Merryweather v Nixan (1799) 8 TR 186; 101 ER 1337, has been abrogated by statute, and the justice of an order for contribution has been recognised, there should remain no bar to the application of the general law of contribution to a case such as the present. Thus, if there be a technical problem with the word "liable" where it first appears in s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act , and I think there is not, there is no cogent reason why equity should not aid the identification of the tortfeasors who ought to contribute and the ascertainment of what would be a just contribution. That is precisely what equity did when, because of problems arising from procedural rules and the non-joinder of parties in common law actions, an appropriate order as to contribution could not be made by a common law court: see Spence [Equitable Jurisdiction of the Court of Chancery, volume 1] p 663" (An appeal against the decision of Davies J in Jones did not overturn the conclusion to which his Honour had come concerning the availability of contribution to Mr Done. However, the reasoning of the Full Federal Court relied only on Mr Done coming within section 5, and did not consider the alternative basis upon which Davies J had held that contribution might be available, if his views concerning section 5 were wrong: Australian Breeders Co-operative Society Ltd v Jones (1997) 150 ALR 488 at 548-549.) 117 Sky Channel Pty Limited v Tszyu [2000] NSWSC 838 was an appeal to Young J (as his Honour then was) against a summary judgment given by a Master. Sky Channel and Tszyu had been sued in the one set of proceedings, Tszyu for breach of contract, and Sky Channel for procuring that breach of contract. Both defendants lost. (The decision of the Court of Appeal to that effect is reported as Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473). Sky Channel paid the amount of the judgment, and sought contribution from Tszyu for one half of the amount paid. The Master had given summary judgment for that amount to Sky Channel. 118 The first ground of Young J's decision was that there was a coordinate liability between the claims made against Sky Channel and against Tszyu, notwithstanding that one of them was a claim in tort and the other a claim for breach of contract. In the course of arriving at that conclusion, his Honour noted, at [26] the decision of Davies J in Jones v Mortgage Acceptance Nominees Ltd (1996) 63 FCR 418; (1996) 142 ALR 561. 119 His Honour then at [27] referred to Palmer v Wick and Pultneytown Steam Shipping Co Ltd [1894] AC 318, where, "… Lord Herschell LC in the Scots Appeal at page 324 held that the rule in Merryweather v Nixan did not apply in Scotland and accordingly had no reason to refuse contribution between tortfeasors under the general law. It is only a short step to argue from such reasoning that now Merryweather v Nixan has virtually been suppressed by the Law Reform (Miscellaneous Provisions) Act 1946 , the same result should apply in NSW." 120 His Honour concluded at [30]-[32]: "All this adds up in my mind to the proposition that after the Law Reform (Miscellaneous Provisions) Act 1946, there is no reason why there cannot be coordinate liabilities between people if one person's liability lies in tort and the other person's lies in contract, any more than it matters that the liabilities may have come from two separate and distinct contracts or one from a statute and one from a contract. Indeed, the only reason for not adopting the proposition is that there is no precedent for it and the only case resembling a precedent, the Tennessee decision to which I have already referred [ J F Elkins Const. Co v Naill Bros 76 SW(2d) 326 (1934)] goes the other way. However, it seems to me that after 1946 and in the light of the comments that Davies J made in Jones v Mortgage Acceptance Nominees (supra) the proposition should be adopted. Accordingly, I hold that it does not affect the situation as to whether there are coordinate liabilities that one such liability arose from a cause of action in tort and the other from a cause of action in contract." 121 In Sky Channel v Tszyu, Young J went on to provide an alternative ground for deciding that contribution was available in that case. He said, at [35]-[36]: "There is no support in other decided cases for the approach taken by Lee J in Trade Practices Commission v Manfal (supra). However the fact that a cause of action merges in a judgment and that that fact may have some relevance to the law of contribution has been a proposition accepted for centuries; see eg Blois v Blois (1680) 2 Vent 347, 348; 86 ER 478, 479. In my view I should follow what Lee J held in Manfal's case so that even if I were wrong under section A, there would be coordinate liabilities under the judgment of the Court of Appeal." 122 None of the cases which the plaintiff relies upon concerned contribution being granted between two joint tortfeasors. Trade Practices Commission v Manfal concerned contribution between persons found liable under section 87 Trade Practices Act; Jones v Mortgage Acceptance Nominees concerned contribution between a tortfeasor and a person found guilty of breach of fiduciary duty; Sky Channel Pty Ltd v Tszyu concerned contribution between a person found guilty of breach of contract, and a person found guilty of the tort of inducing that breach of contract. The plaintiffs' argument in the present case requires examination of whether an Australian court would, today, still follow Merryweather v Nixan. It requires that question to be addressed so far as principles of common law are concerned, and so far as the principles of equity are concerned. Present Australian Position Re Contribution at Law Between Tortfeasors 123 We have seen that, in England by the end of the nineteenth century, the rule in Merryweather v Nixan prevented contribution between tortfeasors, save in certain cases which were exceptions to that rule. This English position was followed in Australia. In Dall v The Blue Wren Taxi Co Pty Ltd [1926] VLR 365 the Victorian Full Court held that the rule in Merryweather v Nixan prevented contribution between joint tort-feasors even if the tort involved was one of negligence. Irvine CJ quoted the first sentence which I have quoted in paragraph 99 above from the judgment of Bruce J in The Englishman and The Australia, and continued: "Mr Jacobs has relied upon an equitable principle of contribution, whether based on implied contract or not, which he seeks to show to have been given effect to in certain cases. In each of those cases, however, it has been shown that some relation existed between the parties, whether of partnership or some other relationship, which gave rise to an obligation of contribution as between themselves, whether as a liability arising from express contract or otherwise, independently of the fact of the loss having been sustained by reason of the wrong or negligence of each. But no case has been cited to us to show that, without the existence of some such relationship, or some such liability arising by implied contract, or arising by law out of that relationship, the mere fact of two independent persons having contributed by the negligence of each to the common injury of a third person, that third person having recovered damages as against one of them, enables the latter person to recover a portion of the damages by way of contribution from the other person concerned." Mann and MacFarlan JJ agreed. Thus, contribution was held not to be available either at law or in equity between the tortfeasors. 124 In the Full Court of the Supreme Court of New South Wales, Owen J in Davenport v Commissioner for Railways (1953) 53 SR (NSW) 552 at 554-5 stated the common law as being: "The rule that there can be no contribution between joint tort-feasors which is said to have been first laid down in Merryweather v Nixan (1799) 8 TR 186; 101 ER 1337 has, as Professor Winfield says in his work on the Law of Tort 5th edition (1950), p 172 had most of its crudity removed. It "is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act" ( Adamson v Jarvis (1827) 4 Bing 66, at p 73; 130 ER, 693 at p 696, per Best CJ, cited with approval by Herschell LC, in Palmer v Wick and Pultneytown Steam Shipping Co (1894) AC 318 at p 324, and by Bruce J, in The Englishman and The Australia (1895) P 212, at p 217; see too Pearson v Skelton (1836) 1 M & W 504; 150 ER 532; Wooley v Batte (1826) 2 Car & P 417; 172 ER 188." 125 In Genders v Government Insurance Office of NSW (1959) 102 CLR 363 a joint judgment of Dixon CJ, McTiernan, Taylor and Windeyer JJ stated (at 376-377) how the law had been in 1942 (the time the then Motor Vehicles (Third Party Insurance) Act 1942 was enacted) in emphatic terms: "Moreover, there was no right of contribution between wrongdoers to the damages one might be obliged to pay: Merryweather v Nixan (1799) 8 TR 186 [101 ER 1337]; cf Adamson v Jarvis (1827) 4 Bing 66 [130 ER 693]. 126 When the Law Reform (Miscellaneous Provisions) Act 1946 was enacted, it did not in terms alter the rule in Merryweather v Nixan. Instead, it provided a statutory remedy, to overcome the unsatisfactoriness of the rule derived from Merryweather v Nixan. 127 Today, contribution between tortfeasors is dependent upon the statutory remedy. In James Hardie & Coy Pty Limited v Seltsam Pty Limited (1998) 196 CLR 53 at 64 Gaudron and Gummow JJ said that section 5(1)(c) and section 5(2) of the Law Reform (Miscellaneous Provisions) Act 1946, "…create both a right and a remedy where, under English common law, none had existed. Paragraph (c) provides the descriptions of those for whom and against whom there is conferred the statutory entitlement to recover contribution. It attempts to comply with Sir Courtenay Ilbert's injunction to those drafting statutes that it be "made clear on whom the rights are conferred and the duties are imposed" . Thus, par (c) is concerned with the identification of parties by certain criteria, not the measure of liability to contribution. The content of the entitlement and the mechanism for its enforcement are found in s 5(2)." 128 Kirby J, at 75, said: "At common law, subject to certain exceptions not presently material, there was no contribution between either joint or concurrent tortfeasors. The origins, and even the applicability, of the common law rules were obscure, and sometimes contested. The best explanation that could be offered for them is that they were grounded in "the rule that wrongdoers cannot have redress or contribution against each other … where the person seeking redress must be presumed to have known that he was doing an unlawful act." ( Adamson v Jarvis (1827) 4 Bing 66 at 73 [130 ER 693 at 696] per Best CJ cited by Lord Herschell LC in Palmer v Wick and Pultneytown Steam Shipping Co [1894] AC 318 at 324). Whatever the explanation in history of the rule, by 1894 it was accepted as a settled principle of English law deriving its principal authority from the decision in Merryweather v Nixan ." (Some citations omitted) Callinan J, at 94 said: "The purpose of the legislation was remedial, to redress the injustice of the common law which generally made no provision for contribution between concurrent or joint tortfeasors." 129 In Austral Pacific Group Limited (in liquidation) v Airservices Australia (2000) 203 CLR 136 at 142 Gleeson CJ, Gummow and Hayne JJ said, "At common law there is no right to contribution or indemnity between tort-feasors. Such rights must be founded in an applicable statute." Callinan J said, at 168-169, "No right to contribution or indemnity between joint tort-feasors existed at common law. Any foundation for such a right is entirely statutory." 130 I would accept that the enactment of section 5 Law Reform (Miscellaneous Provisions) Act 1946 makes clear that it is no longer against public policy for there to be contribution between tortfeasors. However, the passing of the statute did not cause any common law right to contribution to arise between tortfeasors. Present Significance of Nineteenth Century Cases Denying Contribution at Law to the Publisher of a Libel 131 In the nineteenth century case law concerning the application of Merryweather v Nixan to people who have jointly published a libel, one strand was that libel was both a tort and a crime. This double aspect was explained by Lush J in R v Holbrook (1878) 4 QBD 42, at 46-47: "Libel on an individual is, and has always been, regarded as both a civil injury and a criminal offence. The person libelled may pursue his remedy for damages or prefer an indictment, or by leave of the court a criminal information, or he may both sue for damages and indict. It is ranked amongst criminal offences because of its supposed tendency to arouse angry passion, provoke revenge, and thus endanger the public peace, but the libeller is not the less bound to make compensation for the pecuniary or other loss or injury which the libel might have occasioned to the person libelled. In this respect libel stands on the same footing as an assault or any other injury to the person. But the publication of a libel, when prosecuted as a criminal offence, was treated upon an exceptional principle and with exceptional severity. The maxim " respondeat superior" , which (with rare exceptions founded on reasons not applicable to libel, and which I will presently notice) pertains to civil liability only, was applied to an indictment for libel, and the proprietor of a newspaper in which a libellous article had been inserted was held to be criminally as well as civilly responsible for it, though he had never authorised it, nor had anything to do with its insertion, and whether the editor had inserted it by negligence or wilfully. It was not so in other cases of personal injury." 132 That aspect of the law of criminal libel was removed in England by the statute 6 and 7 Victoria chapter 6. Section 7 of that Statute permitted a person charged with libel to prove that the publication was made without his authority, consent or knowledge and that it did not arise from want of due care or caution on his part. 133 The divergence between the civil law of defamation, and the criminal law of defamation, has increased since then. Section 49 of the Defamation Act 1974 abolished the common law misdemeanour of criminal libel (other than the law of blasphemous, seditious or obscene libel). Section 50 created a new statutory offence whereby: "(1) A person shall not, without lawful excuse, publish matter defamatory of another living person: (a) with intent to cause serious harm to any person (whether the person defamed or not), or (b) where it is probable that the publication of the defamatory matter will cause serious harm to any person (whether the person defamed or not) with knowledge of that probability. Penalty: Imprisonment for a term not exceeding three years or a fine of such amount as the court may impose or both. … (4) Proceedings for an offence under this section may not be instituted without the written consent of the Attorney General." 134 There might still be some scope for a contract to provide an indemnity against, or contribution towards, a libel to be not enforced on the grounds of public policy if the person claiming indemnity or contribution had knowingly contravened section 50. However, the divergence between the tort of defamation and criminal defamation means that the cases I have mentioned at paragraphs 102-106 of this judgment cannot be taken as accurately stating the present law in all aspects of their reasoning. In the present case, the defendant does not allege that any of the actions of Mr Belan connected with publication of the letter and the leaflet amounted to a criminal offence. Thus, the cases at paragraphs 102-106 of this judgment cannot be relied on as sufficient to show that the plaintiff has no right to contribution – more general considerations must be looked to. (Even if publication of defamatory matter were criminal, contribution between joint publishers could be obtained under section 5 Law Reform (Miscellaneous Provisions) Act 1946, because it allows contribution "where damage is suffered by any person as a result of a tort (whether a crime or not)".) Present Situation Re Contribution in Equity Between Tortfeasors 135 Prior to the enactment of the Law Reform (Miscellaneous Provisions) Act 1946 equity would not have allowed contribution between joint tortfeasors. Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 4th edition paragraph 10-005 say, "… the common law turned its face against contribution between joint tortfeasors in Merryweather v Nixan … and equity followed the law …" In so far as "equity following the law" in this area meant that equity would observe the same principles of public policy as the common law adopted, there is, since the enactment of the Law Reform (Miscellaneous Provisions) Act 1946, no reason for equity to object to the allowing of contribution between tortfeasors on any ground of public policy. Insofar as Merryweather v Nixan amounted to a refusal to imply an agreement to indemnify, from the mere circumstance that two people had been found jointly liable for a tort, and one of them had paid the whole of the verdict, it is speaking purely about the basis of a common law action, and there is no occasion for equity to follow it. 136 That does not necessarily mean that the way has been cleared for equity to now recognise that contribution between tortfeasors is possible, in accordance with equity's own principles. One reason why there might not be any right of contribution between tortfeasors in accordance with equity's own principles is that equity intervenes only where there is an inadequacy in either the right, or the remedy, created by the common law. It is only the enactment of section 5 Law Reform (Miscellaneous Provisions) Act 1946 which has removed the objection of public policy to equity allowing contribution between joint tortfeasors, yet that section has created its own remedy, and that remedy has not been submitted to be inadequate in any way. What occasion is there, then, for equity to change its view about the availability of contribution between joint tortfeasors from that which it applied before section 5 had been enacted? Further, the usual method by which equity grants contribution is by requiring a common burden to be shared by all those who are subject to it "either equally where they are liable in the same amount or proportionately, where the amount of their liability differs" (per Gaudron ACJ and Hayne J, Burke v LFOT Pty Ltd (2002) 76 ALJR 749 at 752; [2002] HCA 17 at [14]). The statutory right of contribution apportions the liability amongst tortfeasors in a different way, namely by reference to the court's view of what proportions the court regards as just and equitable having regard to the extent of each tortfeasor's responsibility for the damage. To allow equitable contribution between tortfeasors, and apportion the liability in equity's traditional way, would be to proceed contrary to Parliament's will as expressed in the statute, about how liability between tortfeasors should be apportioned. 137 These factors which make me pause about whether, today, equity would grant contribution between joint tortfeasors do not apply to a situation where there is one tortfeasor, who seeks contribution from someone who is liable for the same damage as the tortfeasor, but who is not a tortfeasor. Section 5 Law Reform (Miscellaneous Provisions) Act 1946 does not enable there to be contribution in that situation. Hence, provided other requirements for contribution are present (including the existence of coordinate liabilities) the removal, manifested by the enactment of section 5 Law Reform (Miscellaneous Provisions) Act 1946 of any public policy objection to a tortfeasor being relieved of the consequences of his own wrongdoing means that there might be contribution between a tortfeasor and someone who is not a tortfeasor. The Judgment Against Both Tortfeasors as a Basis for Equitable Contribution 138 And what of the plaintiff's argument that the existence of a judgment against both Mr Belan and Mr Casey demonstrates that they are under a coordinate liability, which suffices for establishing an equity of contribution between them? In my view, that argument does not advance the plaintiff's cause. To explain why, I shall consider first how the existence of a judgment bears upon the availability of contribution at law between tortfeasors. 139 The existence of a judgment could, in some circumstances, provide the foundation for an action of assumpsit. In the heyday of the notion that implied contract was a basis for civil liabilities, Stephen's Treatise on the Principles of Pleading in Civil Actions (7th edition 1866) said, at 11, "The action of assumpsit lies where a party claims damages for breach of a simple contract, ie a promise not under seal. Such promises may be express or implied; and the law always implies a promise to do that which a party is legally liable to perform . This remedy is consequently of very large and extensive application." (emphasis added). 140 The view that the law implies a promise to do that which a party is legally liable to perform led to a decision that there was an implied contract on the part of a judgment debtor to pay a judgment debt, including a foreign judgment debt (Grant v Easton (1883) 13 QBD 302 at 303 (though there is no implied promise recognised by the common law to obey a decree of the Court of Chancery (Bailey v Bailey (1884) 13 QBD 855 at 859), and no implied promise to pay a judgment of a court given under a statutory procedure which reserves to the judge a power to rescind or alter his judgment (Bailey v Bailey, at 860).) This implied contract to pay a judgment debt justified the court in using a rule which permitted service out of the jurisdiction of actions for breach of contract to enforce a judgment debt (Adcock v Aarons (1903) 5 WALR 140; State of Victoria v Hansen [1960] VR 582 at 586.) 141 However the implied contract arising from a judgment is one for the judgment debtor to pay the judgment creditor. The judgment has already declared the existence of the legal obligation for the judgment debtor to pay the judgment creditor. The existence of a judgment against two joint tortfeasors establishes nothing about the liability of the tortfeasors to pay one another. The decision in Merryweather v Nixan itself denies that there is any implied obligation for one of two joint tortfeasors, who have been found liable by judgment, to make any payments to the other joint tortfeasor. 142 So far as the judgment against two joint tortfeasors being a basis for equitable contribution is concerned, the judgment establishes that the two tortfeasors are indeed under a liability. Each of them is under a liability of the same type, and payment by one of them of that liability will discharge the other. However those factors are not by themselves necessarily enough to establish the existence of an equity of contribution. The factors which I have mentioned earlier in paragraph [136], as ones which make me pause before deciding that there can be an equity of contribution between tortfeasors, apply equally to the situation where joint tortfeasors have been found liable by judgment as to the situation where they have not been found liable by judgment. 143 I do not propose to decide whether any right of contribution between joint tortfeasors exists in accordance with equitable principles. Rather, I shall assume that it exists, and turn to consider whether the present proceeding was brought too late to enforce any such equitable right of contribution. Application of Periods of Limitation by Analogy 144 The Limitation Act 1969 does not impose any period of limitation for an action to enforce an equity of contribution. However, section 23 explicitly contemplates that certain sections of that Act can be applied by analogy to a claim for equitable relief. 145 Insofar as an action for contribution at law was based on assumpsit, it was an action in quasi contract, and so had a six year limitation period apply to it under section 14(1)(a) Limitation Act 1969. For a claim to contribution at law, the cause of action is not complete until the plaintiff has actually paid more than his proportion of the debt due: Ex parte Snowdon; In Re Snowdon (1881) 17 Ch D 44 at 48; Wolmershausen v Gullick [1893] 2 Ch 514 at 529. 146 Independently of section 23 Limitation Act equity courts will apply a statute of limitations by analogy. This was explained by Lord Westbury in Knox v Gye (1872) LR5HL 656 at 673-4: "That a Court of Equity will not, after the lapse of six years without acknowledgement, decree an account between a surviving partner and the estate of a deceased partner has been long settled by various decisions. The rule, of course, must be the same where the parties are reversed and the representative of the deceased's partner is the Plaintiff. The general principles were laid down as early as the case of Lockey v Lockey (Prec. in Ch 518) where it was held that where a Court of Equity assumes a concurrent jurisdiction with courts of law no account will be given after the legal limit of six years, if the statute be pleaded. If it could be doubted whether the executor of a deceased's partner can, at common law, have an action of account against the surviving partner, the result will still be the same, because a Court of Equity, in affording such a remedy and giving such an account, would act by analogy to the Statute of Limitations. For where the remedy in Equity is correspondent to the remedy at Law, and the latter is subject to a limit in point of time by the Statute of Limitations, a Court of Equity acts by analogy to the statute, and imposes on the remedy it affords the same limitation. This is the meaning of the common phrase, that a Court of Equity acts by analogy to the Statute of Limitations, the meaning being, that where the suit in Equity corresponds with an action at Law which is included in the words of the statute, a Court of Equity adopts the enactment of the statute as its own rule of procedure." See also at 684 per Lord Chelmsford. 147 This doctrine was explained by Isaacs J in R v McNeil (1922) 31 CLR 76 at 100: "Where a Court of Equity finds that a legal right, for which it is asked to give a better remedy than is given at law, is barred by an Act of Parliament, it has no more power to remove or lower that bar than has a Court of Law. But where equity has created a new right founded on its own doctrines exclusively, and no Act bars that specific right, then equity is free. It usually applies, from a sense of fitness, its own equitable doctrine of laches and adopts the measure of time which Parliament has indicated in analogous cases, but, when a greater equity caused by fraud arises, it modifies the practice it has itself created and gives play to the greater equity." 148 Spry, The Principles of Equitable Remedies, 6th edition (2001) page 419 explains the operation of the application of statutes of limitation by analogy in equity's concurrent jurisdiction: "So it is that a plaintiff whose rights at law in land or in a chattel have been barred is not ordinarily permitted to achieve his object indirectly by resorting to equitable remedies; nor is a plaintiff ordinarily entitled to specific performance of a contract if his rights and law have been lost." When statute of limitation is applied by analogy in Equity's exclusive jurisdiction, and there is no specific statutory provision dealing with the equitable right being enforced, Spry says, at 419-420: "The court may decide that the material equitable right is so similar to legal rights to which a limitation period is applicable that that limitation period should be applied to it also. In this latter case the limitation period is said to be applied by analogy, and the principles which govern cases of this kind are that if there is a sufficiently close similarity between the exclusive equitable right in a question and legal rights to which the statutory provision applies a Court of Equity will ordinarily act upon it by analogy but that it will so act only if there is nothing in the particular circumstances of the case that renders it unjust to do so. What is regarded by Courts of Equity as a sufficiently close similarity for this purpose involves a question of degree, and reference must be made to the relevant authorities. The basis of these principles is that, in the absence of special circumstances rendering this position unjust, the relevant equitable rules should accord with comparable legal rules." 149 In accordance with this principle, an allegation of breach of fiduciary duty, based on facts which would also have allowed a common law action for fraud to be brought, has applied to it the same statutory limitation period as the common law action for fraud: Coulthard v Disco Mix Club Ltd (2000) 1 WLR 707 at 730, and a claim for breach of fiduciary duty founded upon the same facts as would justify a claim in tort or contract has the limitation periods for tort or contract applied to it: Cia de Seguros Imperio v Heath (REBX) Ltd [2001] 1 WLR 112. See also Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 4th edition, paragraph 34-075. 150 In the present case, if there were to be an equity of contribution which enabled one joint tortfeasor against whom a judgment had been recovered to sue another joint tortfeasor, the limitation period which would be applied by analogy is that arising under section 26 Limitation Act. It is not the limitation period arising under section 14(1)(a), because it remains the law, even after the enactment of the Law Reform (Miscellaneous Provisions) Act 1946, that there is no action available at law in quasi contract for contribution between tortfeasors. Hence, if there were to be an equitable right of contribution between tortfeasors, the appropriate analogy could not be drawn to s 14(1)(a). Nor is the analogy to be drawn to section 17 of the Limitation Act – an action for contribution, even when the debt in relation to which contribution is sought is a judgment debt, is not "an action on a cause of action on a judgment". Even though section 26 Limitation Act does not appear on the list of sections which section 23 authorises to be applied by analogy to a cause of action for equitable relief, section 9 preserves the rules of equity concerning the refusal of relief on the grounds of laches acquiescence or otherwise. Thus, the equitable doctrine of the application of a statute of limitations by analogy can, consistently with the structure of the Limitation Act 1969, operate to enable the limitation period arising under section 26 Limitation Act to apply to any equity of contribution which existed between joint tortfeasors. 151 Thus, if there were to be an equity of contribution between Mr Belan and Mr Casey, any right of recovery on that equity of contribution would be statute barred by analogy. If follows that, independently of the reasons given earlier for concluding that the rationale of equitable contribution was not satisfied save in relation to the amount of $23,813.12, any claim for equitable contribution in the present case has been brought too late to be enforceable. 152 This conclusion ought occasion no surprise. It was only by virtue of the enactment of section 5 Law Reform (Miscellaneous Provisions) Act 1946 that contribution between tortfeasors became possible. Section 26 Limitation Act creates a condition upon the exercise of that statutory right of contribution. It would hardly be expected that equity would regard the enactment of section 5 Law Reform (Miscellaneous Provisions) Act 1946 as freeing it to award contribution between tortfeasors, yet not accept the time limitation period to which actions under section 5 were subject. The Contract/Estoppel Claim 153 Mr Casey contends that there was an agreement between himself and Mr Belan whereby Mr Belan agreed to release him from any claim for contribution to the judgment and costs. Alternatively, Mr Casey claims that Mr Belan is estopped from claiming any such contribution, by having represented that he would not do so, and Mr Casey having acted on that representation in dropping the appeal he had instituted against the judgments. 154 Though Mr Casey gave evidence that his appeal against Kirby J's judgment was listed for hearing on 26 June 2000, I am satisfied it was an application for leave to appeal which was listed for hearing on that date. Mr Casey gives evidence that on 9 April 2000 he and his wife were invited to a barbecue at Mr Belan's home. The topic of Mr Casey dropping his appeal arose. Mr Casey gives evidence that he said: ""If I call off the appeal it would have to be replaced by a document to finalise matters between ourselves. I want some finality. The big thing for me is the overhang of costs. I want documentation to end the matter. I don't want anyone suing me for costs. A deed of release would have to be signed" Frank replied with words to the effect: "If the appeal is called off the paperwork will be signed off. I'll sign anything if you put it in front of me." I then said "I'll take that on consideration and talk to my solicitor."" At the time of this conversation, in April 2000, the reader will recall (from paragraph 56 of this judgment) that the amount of damages awarded had already been paid to Mr Palmer and Mr Boner, and Mr Boner's costs had been paid, but Mr Palmer's costs were still outstanding. It was Mr Palmer's outstanding costs which Mr Casey referred to as "the overhang of costs" . 155 Mr Casey also gives evidence that in the week before the "appeal" was listed he had a conference with counsel he had briefed, and been told that the appeal had good prospects of success, and had deposited $4,500 into Hunt & Hunt's trust account. Mr Casey continued: "About Wednesday or Thursday in the week before the appeal I received a 'phone call from the Plaintiff. He said to me words to the effect "You have a huge future with the Union. You can't turn your back on it. You must be walking around blind if you can't see that everyone is ignoring you." I said to the Plaintiff words to the effect "can we get back on an even keel if I discontinue the appeal?" The Plaintiff replied with words to the effect "everything will be forgotten and you'll be given a place of privilege in the Union" I said to the Plaintiff words to the effect "can I get something in writing to remove the threats of costs (and damages)" The Plaintiff replied with words to the effect "I'll sign anything"." 156 Mr Casey had his solicitors prepare a draft of a Deed of Release between himself and Mr Belan. That Deed of Release was made available to Mr Belan, but was never signed. Mr May advised Mr Belan not to sign it, very soon after Mr May first saw the Deed. Mr Belan never told Mr Casey that he had received that advice, or that he would not sign the Deed, but rather told Mr Casey from time to time that he was still considering it. 157 Mr Casey gave oral evidence that on the day after the barbeque he instructed his solicitor at Hunt & Hunt to prepare the Deed of Release, and that: "… it was after I gave a copy, I think the original one, to Maurice May, a copy went to Frank. After I spoke to Frank in the office about it he said he was willing to sign it as soon as I dropped off my appeal. Q. And you dropped off the appeal? A. Yes I did." 158 I am not persuaded that I should accept this last quoted evidence of Mr Casey. As Mr Belan is dead, particular care needs to be taken about accepting evidence concerning a conversation with him. The substance of the evidence had not appeared in any of Mr Casey's affidavits. While I do not think (and it was not submitted) that Mr Casey was being dishonest in his evidence, he sometimes gave evidence which was unreliable. 159 The draft Deed of Release was sent by Hunt & Hunt to Maurice May & Co under cover of a fax dated 23 June 2000. That fax reads: " URGENT We refer to our telephone conversation on 8 June 2000. We enclose copy of a letter from W G McNally & Co dated 24 May 2000. Our client has instructed us that he is willing to settle his appeal on a commercial basis by discontinuing his appeal provided that your client agrees to release our client from a contribution to the judgment monies. Accordingly, we enclose a draft Deed of Release excluding the judgment of his Honour Justice Kirby (Schedule A to the Deed). Our client's Application for Leave to Appeal is listed for hearing on Monday 26 June 2000 at 10.15 am. Bruce McClintock is briefed to appear at the hearing. Therefore, could you please provide us with your client's instructions in relation to the document as a matter of urgency. We look forward to hearing from you. Enquiries in relation to this matter can be directed to Sundip Ghedia on 9391 3258." 160 A communication in those terms, made on 23 June 2000, does not sit well with the contention that an oral agreement had been reached in April 2000 between Mr Belan and Mr Casey. Nor does it sit well with an agreement having been reached, on the telephone, between Mr Belan and Mr Casey in the week before the appeal was due to be heard, whereby Mr Belan agreed to "sign anything" if Mr Casey would drop his appeal. 161 It was also on 23 June 2000 that Hunt & Hunt wrote to the Registrar of the Court of Appeal, advising that Mr Casey's appeal had settled, and that he would not be proceeding with his application for leave to appeal. On 26 June 2000 Terms of Settlement between Mr Casey, Mr Palmer and Mr Boner were executed by their respective lawyers, dismissing Mr Palmer's appeal with each side to pay its own costs. 162 Even if Mr Casey's evidence about the conversation at the barbeque in April 2000 is taken at face value, it would not, it seems to me, amount to reaching of an agreement then and there. Rather, it amounts to Mr Belan making a clear offer, that if the appeal was called off he would sign anything, but Mr Casey not accepting that offer – rather, Mr Casey wanted to think about it further, and talk to his solicitor. Mr Casey's wife also gave some evidence about a conversation at a barbeque at Mr Belan's house in April 2000. Her affidavit evidence was that Mr Belan said to Mr Casey, "if you call the appeal off, I will sign a deed of release and clean your name from the defamation case". Her oral evidence was to similar effect. She says nothing about Mr Casey accepting that proposal of Mr Belan. Thus, her evidence is consistent with that of Mr Casey, and contains the same deficiency so far as any binding agreement having been made at the barbeque is concerned. 163 Neither, it seems to me, does Mr Casey's account of his telephone conversation with Mr Belan in the week before the appeal, amount to reaching an agreement then and there – it ends with Mr Belan making an offer which is not accepted. Mr Casey's account of that conversation also has an oddity, which at first made me hesitate to accept it, in the parenthetical inclusion in the statement he attributes to himself of saying he wanted something in writing "to remove the threats of costs (and damages)". However, on reflection, that oddity is consistent with other evidence. The overall thrust of Mr Casey's evidence, which I accept, is that he thought that the money being raised within the Union to pay damages and costs connected with the defamation actions was as much for him as for Mr Belan. Even so, Mr Casey had some apprehension about whether there could be any comeback against him concerning the damages. Even though the damages had been paid from money connected with the Union, in June 2000 relations between him and Mr Belan were still strained. The Deed of Release which Mr Casey had his lawyers draw up at this time included the following recitals: "Belan has paid to the plaintiffs in the Supreme Court proceedings the full amount of judgment, costs and interest payable under the judgment. (" the judgment monies" ). Belan's appeal was discontinued in about October 1999. Casey's Application for Leave to Appeal is listed for hearing on 26 June 2000. The opponents to Casey's appeal have requested that Casey discontinue the appeal. Casey is desirous of settling his appeal on a commercial basis by discontinuing his appeal. However Casey is concerned that Belan will seek an indemnity from Casey to pay Belan a contribution towards the judgment monies Without any admission of liability, Belan and Casey have reached agreement on the terms set out in this Deed." 164 Hence, it is not improbable that Mr Casey would have wanted to remove both the threat of having to pay costs, and the threat of having to pay damages. However, I do not accept that Mr Belan, in that telephone call, bound himself to sign any document which might have been put in front of him to remove the threat of "costs and (damages)." At the end of that telephone conversation there was still a need for a deed to be prepared, by lawyers, to give effect to the release. The terms of Hunt & Hunt's fax sending the Deed on 23 June 2000 are inconsistent with a binding agreement having been reached in the telephone call. 165 Neither am I persuaded that there was any clear and distinct representation made by Mr Belan that, if Mr Casey were to withdraw his appeal, no further action would be taken against him. 166 Thus, Mr Casey's defences based on contract and estoppel fail. Whether Mr Casey Should be Required to Make A Differential Contribution 167 Counsel for Mr Casey submits that, because the reason why Mr Casey was found liable in the defamation action was because Mr Belan's malice was attributed to him, and denied him the benefit of the defence of qualified privilege which was otherwise available, Mr Casey should be entitled to an indemnity from Mr Belan. Alternatively, Mr Casey submits that his involvement in the defamations was less blameworthy than that of Mr Belan, and so, if he is required to pay any contribution at all, it should be a smaller proportion than Mr Belan. 168 In light of the conclusions I have arrived at so far, it is not necessary for me to make any findings concerning these matters. If I were to attempt to do so, I would be doing so on the basis of documents, not on the basis of how any witness performed before me. Thus, if the Court of Appeal were to disagree with any of the findings I have made so far, it would be in as good a position as I am to make findings about the proportions in which any contribution should be made. Orders 1. The proceedings are dismissed. 2. If any application is to be made concerning costs, I direct that, within 14 days, the parties approach my associate to arrange a date for the hearing of such application. ********** Last Modified: 05/05/2003 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.