Supreme Court New South Wales Medium Neutral Citation: Greinert v Brooker [2018] NSWSC 1194 Hearing dates: 17 July 2018 Decision date: 27 July 2018 Jurisdiction: Common Law Before: McCallum J Decision: Leave granted to the defendants to file a cross claim in the form provided at tab 4 of the Court Book; costs reserved. Catchwords: DEFAMATION – publication and republication – where material provided to journalist by sources republished on national television – plaintiff suing the sources only – application by sources for leave to file cross-claim seeking contribution under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) – whether fairly arguable that the publisher of the television broadcast is a concurrent tortfeasor liable in respect of the same damage – consideration of principles stated by the Court of Appeal in Bracks v Smyth-Kirk PROCEDURE – application for leave to file cross-claim late – consideration of discretionary factors Legislation Cited: Defamation Act 2005 (NSW), ss 26, 30 Law Reform (Miscellaneous Provisions) Act 1946, s 5(1)(c) Uniform Civil Procedure Rules 2005 (NSW), r 9.1(1)(a) Cases Cited: Bracks v Smyth-Kirk (2009) 263 ALR 522; [2009] NSWCA 401 Bracks v Smyth-Kirk [2008] NSWSC 930 Category: Procedural and other rulings Parties: Robert Alexander Greinert (plaintiff) John William Brooker (first defendant) Benjamin Morgan (second defendant) TCN Channel Nine Pty Ltd, Nine Network Australia Pty Ltd and Nine Digital Pty Ltd (proposed cross respondents) Representation: Counsel: K Smark SC (plaintiff) R Rasmussen (defendants) M Richardson (proposed cross respondents) Solicitors: Ford Law (plaintiff) Kalantzis Lawyers (defendants) File Number(s): 2017/108676 Publication restriction: None Judgment (PUBLISHED ORALLY – REVISED) 1. HER HONOUR: These are proceedings for defamation brought by Mr Robert Greinert. The proceedings concern a story broadcast on the 60 Minutes programme on Channel 9 about the retrieval of old war planes from the jungles of Papua New Guinea. The broadcast plainly conveyed defamatory imputations concerning Mr Greinert. It was introduced by the journalist with the following words: "In the rugged and spectacular frontier of Papua New Guinea, there's an outrageous treasure hunt happening. Old War planes - bombers and fighters that once battled to save us against the advancing Japanese during World War II – are being plundered from the jungle. The historic wrecks are in demand by collectors and museums around the world. Some are worth millions of dollars. The problem is the warbirds belong to the government and people of PNG, although that seems to be no deterrent to Australian Robert Greinert." 1. However, the plaintiff has elected, as he is perfectly entitled to do, not to sue the Channel 9 entities that publish 60 Minutes but to confine his case to an action against two men who agreed to be interviewed by Channel 9 for the purpose of the programme, Mr Brooker and Mr Morgan. 2. The amended statement of claim filed on 7 July 2017 makes plain that the broadcast of the 60 Minutes programme that included words spoken to the journalist by each of those two men is not relied upon as a separate cause of action but only as to damages - a distinction well recognised in the authorities. Thus the amended statement of claim pleads, as the first matter complained of, the entire contents of an interview given by the first defendant to Channel 9 and pleads republication of those words by Channel 9. Similarly, the second matter complained of is the entire contents of an interview given by the second defendant to the journalist and republication of those words by Channel 9 is pleaded, as I have indicated, as a matter going only to damages. 3. It is sometimes said in those circumstances that the republication is relied upon as having "swelled" the damages. Here, the swelling is the most part of the whole. Apart from the considerable damage that would have flowed from republication of the words said to the journalist by each of the defendants, the plaintiff is left with publication to a very small handful of people. 4. Mr Brooker and Mr Morgan thus find themselves sued alone for an allegedly defamatory broadcast on national television. They now seek leave to file a cross-claim for contribution against Channel 9. Leave is required because the application is brought outside the time contemplated under the Uniform Civil Procedure Rules, which provide that a cross-claim should ordinarily be filed together with the defence in the proceedings; r 9.1(1)(a). 5. The proposed cross-claim invokes s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). That section provides: "(1) Where damage is suffered by any person as a result of a 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." 1. The application is opposed both by the proposed cross-defendants (the relevant Channel 9 entities) and by the plaintiff. The proposed cross-defendants submitted that the cross-claim against them is hopeless. There were two aspects to that submission. One concerned the strength of the cross-claim pleaded by the defendants against those entities under s 5, which it was submitted is hopeless because the damage from the television broadcast is not the same damage as that claimed by the plaintiff against the defendants. 2. The second basis for the submission was focused on the plaintiff's pleading of his claim as against the defendants. It was submitted that the pleading of republication as swelling the damages was bad in form because the imputations alleged to arise from the republication had not been specified, contrary to the principle stated by McColl JA in Bracks v Smyth-Kirk [2009] NSWCA 401 at [128]-[129]. Separately, it was submitted that the republication was not capable of satisfying the "sense and substance" test. 3. To the extent that the Channel 9 submissions attacked the form of the pleading of the plaintiff's claim, the defendant supported those submissions. To the extent that Channel 9 made submissions that attacked the strength of the proposed cross-claim against it, the plaintiff supported those submissions. 4. As to the points directed to the form of the plaintiff's pleading, the plaintiff noted that the defendants had not previously taken any point in that respect. Any such objection ought ordinarily to have been taken at the first listing of the proceedings in accordance with the provisions of the Defamation List Practice Note SC CL 4. In any event, it was common ground among the parties that no such issue is presently before me, but both the defendants and the proposed cross-defendants foreshadowed the possibility of further applications, depending upon the outcome of the present application. Otherwise, the plaintiff relied primarily on discretionary factors in opposing the grant of leave, focussing principally on the considerations of cost and delay. 5. I turn first to address the strength of the proposed cross-claim. The critical issue under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act is whether Channel 9 is a tortfeasor who would, if sued by the plaintiff, have been liable in respect of the same damage. It is important to note that the words of the statute do not require the cross-claimant to establish that the cross-defendant would have been liable for the same damage; the requirement under the statute is to demonstrate liability "in respect of" the same damage. The test on the present application is whether the proposed cross-claim against Channel 9 on that basis is fairly arguable. It is not necessary, otherwise, to embark upon an assessment of the apparent strength of the claim. 6. The defendants relied on the decision of the Court of Appeal in Bracks v Smyth-Kirk to which I have already referred and, in particular, the remarks at [142] of the judgment of McColl JA. That was a case in which the plaintiff, Mr Bracks, had initially sued Mr Denoon in respect of a letter he had written to Mr Smyth-Kirk, which Mr Smyth-Kirk had in turn incorporated as part of a leaflet distributed in the context of an election for the committee of the Australian Jockey Club. 7. The proceedings against Mr Denoon were settled by agreement resulting in the entry of judgment by consent. Mr Bracks then sought to pursue a claim against Mr Smyth-Kirk. The issue that arose in the later proceedings concerned the way in which the case had been framed by Mr Bracks as against each defendant. I held at first instance that, because of the way the claims had been pleaded, the claim against Mr Smyth-Kirk could not be maintained because the compromise of the claim against Mr Denoon had resolved that claim: see Bracks v Smyth-Kirk [2008] NSWSC 930. 8. The Court of Appeal upheld my decision. The basis for the decision (at [139]) was that I did not err in holding that the amended statement of claim in the Denoon proceedings pleaded a cause of action against Mr Denoon as a joint tortfeasor with Mr Smyth-Kirk in the publication of the whole of the leaflet. After recording that conclusion, McColl JA added at [142]: "I agree with the respondent that the same result would have followed even if the Denoon proceedings had only relied on the publication of Schedule A [Mr Denoon's letter] to the respondent as the cause of action, and relied on the republication as damages case in respect of the publication of that Schedule in the campaign letter. Such a claim, as I have explained, would have enabled the appellant to recover damages from Mr Denoon for the republication of the sting of Schedule A in the campaign letter if that republication was a foreseeable consequence of that original publication. Thus the damage the appellant suffered to his or her reputation as a result of the publication of Schedule A in the campaign letter would have been suffered as the foreseeable consequence of the tort of publishing the original publication. Had Mr Denoon and the respondent not acted in concert in the publication of the campaign letter, as it is manifest they did, they would have been concurrent tortfeasors, having caused the same "damage": the foreseeable consequence of their respective torts, the damage to the appellant's reputation caused by the publication of the campaign letter. 1. As submitted by Mr Richardson, who appears for the Channel 9 entities, it is clear enough that those words were obiter dicta, the Court having made plain that the determinative finding was the finding recorded at [139] of the judgment. Mr Richardson submitted that I should not apply what was said by McColl JA at [142] because it was plainly wrong. He submitted that the error lay in the fact that the remarks assume, on the "republication as to damages" scenario, that Mr Denoon was liable for publication of the whole of the leaflet, not simply the words he spoke in his separate letter which was schedule A. 2. The submission appeared to assume that the phrase "liable in respect of the same damage" in s 5 means "has a coinciding liability for the whole of the same damage". But it could alternatively be directed to the situation where the concurrent tortfeasor's liability includes liability in respect of the same damage being part of the whole, without there being a complete coincidence in the damage. 3. On that analysis, it would be irrelevant if Channel 9 was also liable for the publication of other stings not sued on by the plaintiff in its case against the defendants. The focus would be on each concurrent tortfeasor's respective liability in respect of those stings. On that analysis, I do not think it is necessary to determine or express any view as to the correctness of what McColl JA said in Bracks v Smyth-Kirk at [142]. I am not persuaded that it is unarguable that Channel 9 is liable for "the same damage" as that for which the defendants are alleged to be liable at the suit of the plaintiff in the case as he has framed it against them. As made plain by the Court of Appeal in Bracks v Smyth-Kirk, the term "damage" in this context does not mean "the same damages": see [141] of the judgment. 4. The section also plainly does not require the cross-claimants to prove that the cross-defendants have concurrent liability for the whole of the same damage. Indeed, in most cases under s 5, which are often personal injury or medical negligence cases, that would not be the case. In my view, it is reasonably arguable that, where words stated by a source to a journalist are republished by the journalist, the source can seek contribution against the journalist as a concurrent tortfeasor in respect of the damage caused only by the publication of the imputations specified by the plaintiff as against the source (assuming the journalist is established to be a concurrent tortfeasor). 5. I emphasise that I am not saying that is the law; only that I am satisfied it is reasonably arguable. The notion of attributing particular damage to particular imputations is not foreign to proceedings under the Defamation Act 2005 (NSW). For example, that is an aspect of the task required when considering a defence of contextual truth under s 26 of the Act. For those reasons I am satisfied that it is reasonably arguable that Channel 9 could be a concurrent tortfeasor liable in respect of the same damage as the defendants, that is, the damage caused by the imputations sued on by the plaintiff. 6. As to the consequential complaints raised in the alternative by Mr Richardson regarding the manner of pleading of the cross-claim and the plaintiff's claim against the defendants, as I have already indicated, those are arguments for another day. Had the cross-claim been brought in a timely way, I do not think it would have been demurrable so that, leaving aside the discretionary considerations, leave ought to be granted. 7. The discretionary considerations raise difficult questions. For this purpose, as already indicated, the Channel 9 parties adopted the plaintiff's submissions, while frankly acknowledging that, so far as the Channel 9 parties are concerned, delay is not a strong factor since it would be open to the defendants to bring a claim for contribution for a period of two years after any judgment entered against them. 8. The plaintiff's position, however, is more acute and his submissions raised some powerful discretionary considerations. Mr Smark SC, who appeared on this application for the plaintiff, pointed first to the question of the mode of trial. Prior to the bringing of the present application, the proceedings had moved beyond the stage of the second listing and were ready to take a hearing date, in circumstances where neither party had filed a requisition for trial by jury. 9. There is every prospect that, if allowed into the proceedings, Channel 9 would seek to have the proceedings tried by jury. There could be a real issue as to whether it is entitled to make any such election, its role in the proceedings being pursuant to the statutory remedy (if that is the right word) under s 5, rather than in response to a claim by the plaintiff for defamation. That is a fight for another day and it is difficult to judge the merits of that point either way at this stage. It can at least be acknowledged that there may now be a contest about an issue that would not otherwise have arisen. 10. Secondly, Mr Smark pointed to the extent to which bringing Channel 9 into the proceedings might visit a further burden on the plaintiff, for example, to provide particulars which would now be sought by the defendants which they have not previously sought. Mr Smark was referring in that context to the issue to which I have already referred, namely, the suggestion in Bracks v Smyth-Kirk at [128] and [129] that, contrary to the view I expressed at first instance in that case, it is necessary for the imputations allegedly carried by the republication to be pleaded by the plaintiff, even where the republication is relied upon only as to damages (since publishing this judgment it has occurred to me that the short answer may be they will necessarily be the same, but that has not been debated). For present purposes, the answer to that, in my view, is if that is a weakness in the plaintiff's case, it is a weakness whether or not Channel 9 is joined as a cross-defendant in the proceedings and that it should be addressed. 11. Thirdly, Mr Smark referred to the prospect that Channel 9 may have substantial defences not available to the present defendants. He referred in particular to the defence of qualified privilege under s 30 of the Defamation Act, noting that the journalists did make appropriate enquiries and might seek to establish qualified privilege and, further, that Channel 9 may have a complete defence of contextual truth under s 26 of the Act, in circumstances where the broadcast touched on many subjects not addressed by the defendants in their limited interviews with the journalist. 12. That is an issue of real concern. On one view it may be that the cross-defendants would not be entitled to rely on those kinds of defences if the analysis I have suggested above is correct. They would be joined in the proceedings only as concurrent tortfeasors liable for contribution in respect of the limited imputations specified by the plaintiff as against the defendants. But that is by no means clear and, if broader defences are able to be raised by them, that would result in a real expansion of the issues in the proceedings, with consequential delay and increased costs in all likelihood being visited upon the parties. It could be that the plaintiff could be protected against the expansion of costs in that respect, since it is not the plaintiff who has chosen to join Channel 9 in the proceedings. 13. The fourth issue raised by Mr Smark was how the trial would proceed and what role Channel 9 would play. Mr Smark suggested - and it coincides with the experience of the Court - that as a large media defendant, it is likely that Channel 9, if participating in the proceedings, would be represented by a "healthy" legal team, whereas the plaintiff chose to frame the proceedings in a way that would see issues argued by a leaner team, more expeditiously and in a manner that might be thought more proportionate to the interest at stake. Again, that raises an issue of real concern. There does appear to be some risk of an increase of cost to the plaintiff if the present application is successful. 14. Conversely, if the application is unsuccessful, the defendants would be left to sue Channel 9 after the conclusion of the proceedings. They would, in those proceedings, be entitled to tender the judgment in order to prove their liability to the plaintiff, but they would have to run a whole separate case effectively as a plaintiff against Channel 9 to prove its status as a concurrent tortfeasor. That would involve substantial duplication; it would be inefficient and, to be blunt, feels inconsistent with the dictates of justice. 15. The plaintiff has chosen to plead his claim in a confined, proportionate way and the potential of the proposed cross-claim to expand the issues is large. However, as I have already noted, the bulk of the plaintiff's claim is the so-called swelled damages. The defendants' case (as particularised in the proposed cross-claim) is that they were invited by Channel 9 to participate in interviews which were then broadcast on national television. They are now left, in effect, in a small boat floating out to sea without the support of the well-funded entity that broadcast those imputations nationally. The plaintiff's position can, as I have explained, to some extent potentially be protected as to costs, since he is not the party that has sought to join Channel 9. 16. Whilst I have not found this issue easy to determine, I have ultimately concluded that, notwithstanding the powerful discretionary considerations against granting leave, those considerations are outweighed by the interests of the defendants and that the dictates of justice require that leave be granted. 17. For those reasons, I make the following orders: 1. Leave is granted to the defendants to file a cross-claim in the form provided at tab 4 of the Court Book; 2. I reserve the costs of the argument. ********** Amendments 09 August 2018 - Incorrect date on coversheet 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. Decision last updated: 09 August 2018