Nine Network Australia Pty Ltd & Ors v Wagner & Ors

This matter principally concerned the proper approach to framing judgments for awards of damages for defamation against several concurrent tortfeasors where the award of ordinary damages involves an indivisible part of the same harm, but aggravated damages are awarded for distinct conduct. In an illuminating judgment, Jackson J held that the aggravated damages component had to be pronounced in a manner that allowed it to be dissected from the ordinary damages awarded for the indivisible harm shared with the other several concurrent tortfeasors, so that any issue of double recovery or satisfaction was capable of resolution.

Morrison and Mullins JJA and Jackson J

13 October 2020

A jury found that a “60 Minutes” program broadcast by the first to fifth appellants (“the Nine Network appellants”) had conveyed several defamatory imputations about the respondents in relation to the Grantham Floods. The sixth appellant, a journalist featured in the program, was found to have conveyed a single defamatory imputation that overlapped with one of the several established against the Nine Network appellants. [4]–[5], [16]. The trial judge made separate judgments for damages in favour of each respondent against the Nine Network appellants (as a group), and against the sixth appellant with the effect that each respondent had the benefit of a judgment in the sum of $600,000 plus interest against the Nine Network appellants and a separate judgment against the sixth appellant for $300,000 plus interest (see [2019] QSC 284; [2019] 48 QLR, 13–14). [6]–[12].

An appeal was brought against the damages awards on a number of grounds. The leading judgment in the Court of Appeal was given by Jackson J, with whom Morrison and Mullins JJA agreed. The central issue on the appeal, and the sole ground of appeal that ultimately succeeded, related to whether the trial judge had erred in awarding damages severally against the Nine Network appellants on the one hand and the sixth appellant on the other. [15]–[24].

Several and cumulative awards

Justice Jackson considered that the trial judge was correct to make separate awards against the Nine Network appellants and the sixth appellant. [18]. However, in a case involving concurrent tortfeasors (whether joint tortfeasors or several concurrent tortfeasors) like this one, the awards ought to have been broken up into separate components for ordinary and aggravated damages. [19].

In this case, the Nine Network appellants had not been sued as joint tortfeasors. The sixth appellant and the Nine Network appellants were sued as several concurrent tortfeasors (under distinct causes of action) in relation to the imputation conveyed by the sixth appellant, which aligned with one of the imputations conveyed by the Nine Network appellants and did not cause separate harm. In respect of ordinary damages, the sixth appellant was therefore liable for the part of the harm caused by the Nine Network appellants that was “indivisible” as between him and those appellants. [20]–[29], [57]. As to aggravated damages, Jackson J concluded that:

“where a single judgment or separate judgments in the same amount otherwise would be made against several concurrent tortfeasors for damages in respect of indivisible harm, separate awards must be made for any aggravated damages where the aggravated conduct is not jointly engaged in by all defendants and the same amount of aggravated damages is not assessed against all of them.” [39].

Double recovery or satisfaction

A question of double recovery arose in this case as the award of ordinary damages was in part in respect of the same harm arising from defamation by several concurrent tortfeasors. [58]. The Court had power to prevent double recovery, by granting a stay or an injunction. However, this required the Court’s judgment to be “pronounced in such a way that it [could] be ascertained when a plaintiff has already recovered or recouped satisfaction” for the harm. [58]–[65]. While, in respect of the Nine Network appellants, the trial judge stated that his Honour would have awarded $400,000 for ordinary damages and $200,000 for aggravated damages ([66]), the trial judge did not “make a similar allocation finding in respect of the sixth appellant” but instead simply awarded a lump sum of damages (including aggravated damages) of $300,000. [67].

In Jackson J’s view, the form of judgment pronounced by the trial judge meant that it was not possible to determine whether, in recovering from the Nine Network appellants or the sixth appellant, one of the respondents would be obtaining double recovery. [68]. The judgments did not enable one to “ascertain the extent of the indivisible harm”. The trial judge’s approach rendered it impossible “to dissect the award against the sixth appellant which was for ordinary damages that [were] not aggravated damages”. As a consequence, the judgments operated “in a cumulative way”. [69].

Accordingly, the ground of appeal was made out. [70].

Proper form of the judgments

As to the proper form of the judgments, Jackson J observed:

1. Each judgment should be in form: “the judgment of the court is that … the defendant pay the plaintiff the sum of $X”. [77].

2. A money judgment that includes different components that carry different rights should identify the different components. [78].

3. A claim against joint tortfeasors should usually result in a single judgment. [79].

4. A claim that joins causes of action against several tortfeasors in the one proceeding should result in a separate judgment against each tortfeasor. [80].

5. A claim that joins causes of action against several concurrent tortfeasors where part of the harm claimed against them is indivisible and another part of the harm is not, should result in separate judgments that reflect that distinction, to enable it to be ascertained when the damages for the indivisible harm have been recovered in full. [81]–[82].

In this case, Jackson J considered that the appropriate solution was to vary the judgments made by the trial judge “to give effect to the partial several concurrent liability of the sixth appellant and the Nine Network appellants”. [83]. For the Nine Network appellants, the judgment was to be varied to be a “judgment for $600,000, including $200,000 for aggravated damages” plus interest. [84]. Such a variation enabled any double recovery or satisfaction for the indivisible harm also caused by the sixth appellant to be ascertainable. This exercise was not possible as against the sixth appellant. Instead, Jackson J applied the same ratio of aggravated to ordinary damages as awarded against the Nine Network appellants, so that the judgment against the sixth appellant was varied to be a judgment for $300,000 that included $100,000 for aggravated damages, together with an appropriate amount of interest. [85].

Disposition

In the result, the appeal was allowed, with the judgments varied as outlined above and the parties to be heard as to costs. [180]–[181].

S Walpole