COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
BURCHETT(1), MILES(2) AND RYAN(1) JJ

CWDS

  Defamation - defence of "innocent dissemination" - whether available to a
television broadcaster who received a program from a station in another area
and telecast it in its own area without change - discussion of the nature of
the defence - whether in the circumstances of the particular case there was
negligence on the part of the television company within the meaning of the
principle of the defence - reference to questions of policy.

  Release Joint Torts - effect of release of one joint tortfeasor - whether
s.11 of the Law Reform (Miscellaneous Provisions) Act 1955 (ACT) abolished the
common law rule that a release of one joint tortfeasor operates as a release
of all - discussion of authorities - discussion of rule that Acts altering the
common law should be construed as doing so only so far as is necessary to give
effect to their provisions - discussion of relationship between release rule
and recovery of contribution by one joint tortfeasor from another.

  Law Reform (Miscellaneous Provisions) Act 1955 (ACT), s. 11
  Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s. 5(1)

  Emmens v. Pottle (1885) 16 QBD 354
  Weldon v. "The Times" Book Company (Limited) (1912) 28 TLR 143
  McLeod v. St. Aubyn (1899) AC 549
  Vizetelly v. Mudie's Select Library, Limited (1900) 2 QB 170
  Sun Life Assurance Company of Canada v. W.H. Smith and Son Limited (1933)
150 LT 211
  Goldsmith v. Sperrings Ltd (1977) 1 WLR 478
  Jensen v. Clark (1982) 2 NZLR 268
  Duck v. Mayeu (1892) 2 QB 511
  Cutler v. McPhail (1962) 2 QB 292
  Ramsay v. Pigrim (1968) 118 CLR 271
  J F and B E Palmer Pty Ltd v. Blowers and Lowe Pty Ltd (1987) 16 FCR 89
  Bryanston Finance Ltd v. de Vries (1975) QB 703
  Wah Tat Bank Ltd v. Chan Cheng Kum (1975) AC 507
  XL Petroleum (NSW) Proprietary Limited v. Caltex Oil (Australia) Proprietary
Limited (1985) 155 CLR 448
  Apley Estates Company Limited v. De Bernales (1947) Ch 217
  Dixon v. The Queen in Right of British Columbia (1979) 99 DLR (3d) 652
  Dixon v. The Queen in Right of British Columbia (1980) 128 DLR (3d) 389
  State of New South Wales v. McCloy Hutcherson Pty Ltd (1993) 43 FCR 489
  Corporate Affairs Commission of New South Wales v. Yuill (1991) 172 CLR 319
  Hocking v. Western Australian Bank (1909) 9 CLR 738
  American Dairy Queen (Q'ld) Proprietary Limited v. Blue Rio Proprietary
Limited (1981) 147 CLR 677
  Black-Clawson International Ltd v. Papierwerke Waldhof-Aschaffenburg (1975)
AC 591
  Deanplan Ltd v. Mahmoud (1993) Ch 151
  Nickels v. Parks (1948) 49 SR(NSW) 124
  Brambles Constructions Pty Limited v. Helmers (1966) 114 CLR 213
  Bitumen and Oil Refineries (Australia) Limited v. Commissioner for
Government Transport (1955) 92 CLR 200

HRNG

CANBERRA, 18-19 April 1994
#DATE 19:12:1994

  Counsel for the Appellant:         Mr B.J. Salmon QC
                                     with Mr CP McKeown

  Solicitors for the Appellant:      Murphy and Moon

  Counsel for the First Respondent:  Mr W.H. Nicholas QC
                                     with Mr A.S. Martin

  Solicitors for the First           Sly and Weigall
Respondent:

  Counsel for the Second             Mr B.R. McClintock
Respondents:

  Solicitors for the Second          MacPhillamy Cummins and
Respondents:                         Gibson

ORDER

  THE COURT ORDERS THAT:
    1.    The appeal be dismissed.
    2.    There be no order as to the costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.

JUDGE1

BURCHETT AND RYAN JJ  There is no doubt that the first respondent defamed the
appellant, who accordingly sued for damages.  But this appeal is concerned
with whether a defence has been established known as "innocent dissemination",
and also with whether the appellant was shown to have released the respondent
from liability.  Each of these defences raises questions that are
controversial in the modern law.

2.  The first respondent ("Channel 7") operated a television broadcasting
station with a viewing audience covering the Australian Capital Territory and
parts of New South Wales, including Queanbeyan. One programme telecast by it,
a current affairs programme known as the "Today Show", was produced on behalf
of the second respondents ("Channel 9") in Sydney, where it was seen on the
station Channel 9, being transmitted to a receiving station on Black Mountain,
Canberra, and from there to Channel 7's studios for virtually simultaneous
telecasting in the Australian Capital Territory.  On the relevant occasion,
the "Today Show" included an interview with a young woman identified as
"Vicki", who alleged that her father had committed incest with her from the
time she was seven years old, and had fathered a child to whom she had given
birth when she was fourteen.  We should add that it is not now suggested these
allegations were true.  Nor in fact did Vicki give birth to a child when she
was fourteen.  Although the appellant is not actually Vicki's father, he was
living in Queanbeyan with her mother and their family, as husband and wife,
and the learned Judge who heard the matter has held, on the plainest evidence,
that people who knew the appellant and his family would have taken the
allegations to refer to him.

3.  Having regard to what is required to be shown in order to make out a
defence of innocent dissemination, a matter to which we shall shortly come, it
is important to note that the allegations made by Vicki were not the
spontaneous and unforeseen remarks of a person appearing on a live telecast,
injected suddenly into an interview dealing with some other topic.  The terms
of the discussion which took place on the programme, and the part played by
the interviewer, make it quite clear that those responsible had prior notice
of what the young woman Vicki would say.  Indeed the interviewer did not
refrain from putting the story about the birth of the child into her mouth.
It is therefore apparent that the extremely damaging nature of what was to be
said was known in advance.  And if that was known in advance, the possibility
that the story was false must also have been appreciated.  Its source was a
self-acknowledged prostitute and drug addict.  The publication of such a story
cannot be regarded as made with that confidence of freedom from any taint of
defamation which the Court of Appeal in Weldon v. "The Times" Book Company
(Limited) (1912) 28 TLR 143 was willing to attribute to the publication of
statements made in scholarly (and presumably objective) studies of certain
celebrated musicians of the past, among whom happened to be Gounod.

4.  But although these comments plainly apply to the producer of the
programme, Channel 7 claims that, for its part, it was entirely innocent of
any knowledge that the programme was or might be defamatory of anyone.  It
received the transmission under an agreement containing no particular terms
about its content; and the arrangements made for the telecast in the
Australian Capital Territory did not provide any opportunity for Channel 7 to
monitor independently the statements made by those involved.

5.  The law concerning the defence of innocent dissemination is stated in
Gatley on Libel and Slander ("Gatley"), 8th ed. (1981), para. 241, as
follows:
    "But the liability is somewhat different in the case of a
      person who is not the author, printer, or the 'first or main
      publisher of a work which contains a libel,' but has only
      taken 'a subordinate part in disseminating it,' e.g. by
      selling, distributing or handing to another a copy of the
      newspaper or book in which it appears.  Such a person will
      not be liable if he succeeds in showing -
      (i)     that he did not know that the book or paper
              contained the libel complained of; and
      (ii)    that he did not know that the book or paper was of a
              character likely to contain a libel; and
      (iii)   that such want of knowledge was not due to any
              negligence on his part."

6.  This defence is generally regarded as having originated in the decision of
the Court of Appeal in Emmens v. Pottle (1885) 16 QBD 354.  It seems to us
there are at least two strands to the reasoning in Emmens v. Pottle and the
cases which have followed it.  One strand relies on the limited nature of the
defendant's involvement in the publication; he was not responsible for the
insertion of the libellous material in the book or newspaper, nor for its
injection into the stream of commerce in articles of that kind.  This,
however, even when combined with innocence of knowledge of the libel, would
not be sufficient in itself to excuse him.  But, in addition, the bookseller
or newsagent may be able to show no negligence on his part was involved in his
assumption that the articles in which he dealt were such as it was proper for
him to sell. In seeking to show that, he is assisted, as a factual
consideration tending against any reasonable requirement of precautions on his
part, by his lack of involvement in the original production of the libel. Thus
the two strands of the principle are twisted together.  In Emmens v. Pottle
itself, Bowen LJ said, in words which Cozens-Hardy MR repeated in Weldon
(supra) at 144:
    "The jury have found as a fact that the defendants were
      innocent carriers of that which they did not know contained
      libellous matter, and which they had no reason to suppose
      was likely to contain libellous matter.  A newspaper is not
      like a fire; a man may carry it about without being bound to
      suppose that it is likely to do an injury.  It seems to me
      that the defendants are no more liable than any other
      innocent carrier of an article which he has no reason to
      suppose likely to be dangerous.  But I by no means intend to
      say that the vendor of a newspaper will not be responsible
      for a libel contained in it if he knows, or ought to know,
      that the paper is one which is likely to contain a libel."

7.  That the defence is limited to persons fulfilling a subordinate role is
made clear by the decision on the closely analogous question of publication of
a contempt of court in McLeod v. St. Aubyn (1899) AC 549. There, the Privy
Council (Lord Watson, Lord Macnaghten, Lord Morris and Lord Davey), in an
advice delivered by Lord Morris, said (at 562):
    "He was not the printer or publisher of the newspaper.  He was
      a mere agent and correspondent of it at St. Vincent.  ...
      It would be extraordinary if every person who innocently
      handed over a newspaper or lent one to a friend, with no
      knowledge of its containing anything objectionable, could be
      thereby constructively but necessarily guilty of a contempt
      of a Court because the said newspaper happened to contain
      scandalous matter reflecting on the Court.  ...  A printer
      and publisher intends to publish, and so intending cannot
      plead as a justification that he did not know the contents.
      The appellant in this case never intended to publish. "
Cf Regina v. Griffiths. Ex parte Attorney-General (1957) 2 QB 192 at 204-205;
there the respondents' role was not seen as merely subordinate, and they were
liable.

8.  The same point was made by Romer LJ in the Court of Appeal decision
Vizetelly v. Mudie's Select Library, Limited (1900) 2 QB 170 at 180, where he
said:
    "The result of the cases is I think that, as regards a person
      who is not the printer or the first or main publisher of a
      work which contains a libel, but has only taken, what I may
      call, a subordinate part in disseminating it, in considering
      whether there has been publication of it by him, the
      particular circumstances under which he disseminated the
      work must be considered.  If he did it in the ordinary way
      of his business, the nature of the business and the way in
      which it was conducted must be looked at; and, if he
      succeeds in shewing (1.) that he was innocent of any
      knowledge of the libel contained in the work disseminated by
      him, (2.) that there was nothing in the work or the
      circumstances under which it came to him or was disseminated
      by him which ought to have led him to suppose that it
      contained a libel, and (3.) that, when the work was
      disseminated by him, it was not by any negligence on his
      part that he did not know that it contained the libel, then,
      although the dissemination of the work by him was prima
      facie publication of it, he may nevertheless, on proof of
      the before-mentioned facts, be held not to have published
      it.  But the onus of proving such facts lies on him, and the
      question of publication or non-publication is in such a case
      one for the jury."

9.  The sense in which it must be shown that the defendant was not negligent
in not knowing of the libel is well illustrated by Sun Life Assurance Company
of Canada v. W.H. Smith and Son Limited (1933) 150 LT 211, another decision of
the Court of Appeal.  The case was concerned with the exhibition by newsagents
of a poster supplied to them by the publishers of a newspaper to promote the
sales of their paper.  The newsagents received the papers and posters at their
head office, where they did not have time to examine them, and sent them out
to various bookstalls.  Scrutton LJ said (at 213):
    "But there appears to me to be in the system of Messrs W.H.
      Smith and Son Limited no efficient supervision of what they
      exhibit at their bookstalls for payment as in the case of
      exhibition under the contract which I have read.  It is
      obvious ... that, if it is a question for the jury whether a
      business carried on in this way is carried  on negligently,
      there was evidence upon which the jury could answer the
      fourth question as they did, 'Was there any negligence on
      the part of the defendants in not knowing that the poster or
      the newspaper contained a libel?'  The jury may very well
      have thought: 'It is true that you are not able in the rush
      of business at your head office to look at every newspaper
      and every poster, but when you send the posters to your
      responsible manager of a bookstall to paste up, if you
      cannot look at them yourself, it is obvious that you ought
      to give him instructions that if, on looking at the poster
      he is suspicious of the subject-matter which you have not
      seen, he should at least at once communicate with you and
      not exhibit the poster until he has received your answer.'"
Greer LJ said (at 215-216):
    "The effect of the evidence is this, that by the system they
      have adopted, Messrs W.H. Smith and Son Limited have made it
      next to impossible that they should exercise any care
      whatever in seeing whether posters they put up for reward
      for themselves contain defamatory statements against some
      other person.  It seems to me to be a course of conduct that
      may be regarded as negligent, because 'negligence' imports
      the neglect of a duty towards someone, and surely the people
      who issue and put up posters owe some duty to the public, to
      the people who read them, to the people about whom they are
      written.  It is not sufficient for the defendants to say
      that it is inconvenient for them and difficult for them,
      having regard to their large business, to make any other
      arrangements than the arrangements which they have in fact
      made.  If those arrangements result in a breach of the duty
      to exercise reasonable care towards persons who may be
      damaged by defamatory statements, then there is negligence
      within the rules which have been laid down with reference to
      the question of innocent dissemination."

10.  Apart from the dissenting judgment of Lord Denning in Goldsmith v.
Sperrings Ltd (1977) 1 WLR 478, which (as Scarman LJ pointed out at 500) is
not only contrary to the views of the majority but contrary also to the
leading textbook in the area, Gatley, and to the concession of the parties in
that case, it has always been accepted that the onus of establishing the
defence of innocent dissemination is upon the defendant.  In Jensen v. Clark
(1982) 2 NZLR 268 at 275 Prichard J said:
    "(I)t is clear that there is an onus on the 'disseminator' to
      show that he was not aware of any circumstance which would
      put him on his guard or lead him to suspect that the
      material might be defamatory or, if he was aware of any such
      circumstance, that he took care to ensure that the material
      was not defamatory before disseminating it.  In Goldsmith v.
      Sperrings Ltd (1977) 2 All ER 566, 572, Lord Denning put it
      on the basis of 'knew or ought to have known' and expressed
      the view that the onus of proof was on the plaintiff.
      However, that was a dissenting judgment and seems to be
      unsupported by any other decision."
Prichard J asserted the law was accurately stated by Bowen LJ in the passage
we have quoted from his judgment in Emmens v. Pottle (supra). In so holding,
he was following in the footsteps of Cozens-Hardy MR in Weldon (ubi supra) and
Scrutton LJ in Sun Life Assurance Company of Canada (supra at 214), who said:
    "In my view the safest course for the trial judge ... is to
      follow Bowen LJ, who is a very good man to follow."

11.  The defence of innocent dissemination has not previously been thought
available to a television company broadcasting material which it did not
produce.  The point is mentioned in Winfield and Jolowicz on Tort 13th ed.
(1989) at 319, where it is stated in a footnote that the Faulks Committee
(Cmnd. 5909 (1975)) "recommended no change in the law" (i.e. in the rule that
the defence was not available to a broadcasting company).  The same position
seems to obtain in South Africa: J.M. Burchell, The Law of Defamation in South
Africa (1985) 177.

12.  In the American Second Restatement, Torts (1976), it is set out in s.
581:
    "(1)    Except as stated in subsection (2), one who only
      delivers or transmits defamatory matter published by a third
      person is subject to liability if, but only if, he knows or
      has reason to know of its defamatory character.
      (2)   One who broadcasts defamatory matter by means of radio
      or television is subject to the same liability as an
      original publisher."
In the commentary on this section, there is an elaboration of the position of
radio and television broadcasting companies:
    "For their own business purposes they initiate, select and put
      upon the air their own programs; or by contract they permit
      others to make use of their facilities to do so, and they
      cooperate actively in the publication.  Their activity is
      similar to that of a newspaper, which employs its own
      reporters or writers to prepare matter to be published, or
      by contract agrees to publish matter, such as
      advertisements, prepared and controlled by others.
      The broadcasting company is therefore not to be regarded as
      engaged solely in the transmission of messages.  As in the
      case of a newspaper, it is an original and primary publisher
      and is not subject to the exceptional rule stated in
      Subsection (1)."

13.  In our opinion, a television company broadcasting a programme in its area
- a programme which may never have been published in that area otherwise -
although it may have been received from a different company that had produced
it, is a world away from the subordinate distributor to whom Gatley says the
defence of innocent dissemination may be available.  On the contrary, the
television company is an original publisher of the particular broadcast beamed
from its station into the area covered by its broadcasts.  If an analogy to a
newsagent or bookshop were to be sought in the electronic field, a shop
selling or letting on hire video cassette recordings would be an obvious
suggestion.  To the television station, the words of Lord Morris in McLeod v.
St. Aubyn, which we have earlier quoted, must apply: as a "publisher (it)
intends to publish, and so intending cannot plead as a justification that (it)
did not know the contents".  That seems to us to be the position on the
existing authorities.  But if the question is to be considered from the
standpoint of the policy that should be adopted by the law, it is also
relevant to point out that both the report of the Faulks Committee in England
and the Second Restatement in America have come down firmly in favour of the
continued application of the accepted principle.  Although it does not apply
in the present case having regard to the financial substance of Channel 9,
there also militates against the extension of the defence of innocent
dissemination to relayed television transmissions the possibility that the
originator of defamatory material might be insolvent or, as an overseas
entity, could not be sued readily or at all in the courts of this country.  In
those circumstances, there seems to be no reason in policy why the defence
should be available to deny the victim a remedy against a solvent and
available defendant which has derived whatever benefit it perceived from
transmitting the material.

14.  We would accordingly hold that the defence is not available to the
respondent.  However, if it were available, in our opinion it has not been
made out in the present case.  The defendant did not prove that exercise of
due care which it was required to show.  Indeed, it proved that the contract
under which it received the programme for telecasting contained no term
whatever requiring due care to be exercised, either generally, or with
particular regard to the risk of defaming someone in the viewing area.  The
reality is that those who produced the programme were aware in advance of the
nature of what would be said on it; and if Channel 7 was content to accept the
producer as its agent in respect of the consideration of the propriety of
televising the material, and the producer took no care, we do not see why
Channel 7 should escape the consequences of the producer's knowledge.  At any
rate, it took no precautions of any kind, knowing the programme was a current
affairs programme, a programme which by its nature would be likely to involve
comments about persons.

15.  It was said that there was no opportunity to monitor the content of the
programme between its receipt at the Black Mountain receiver and the
telecasting of it by Channel 7.  If that were inevitably so, it would
underline the need to require precautions to be taken in connection with the
making of the programme.  But nothing at all was proved to show that there was
anything inevitable about it.  The proof offered went no further than that
things were done in that way.  Whether it was feasible to monitor the
programme for possibly defamatory statements was simply not explored in
evidence.  If the defence had otherwise been available, it seems to us that it
would have failed for the same reason that it failed in Sun Life Assurance
Company of Canada (supra) - that the company had not shown that its
arrangements had involved the exercise of reasonable care towards persons who
might be damaged by defamatory statements, to put the matter in the terms
chosen by Greer LJ.

16.  Having reached this conclusion, it is necessary for us to turn to the
alternative defence of release.  Before the hearing of his claim against
Channel 7, the appellant had sued the television company responsible for
broadcasts on Channel 9 in Sydney, where the same programme had been telecast,
and had settled his claim against that company for $50,000.  The settlement
was embodied in a deed of release made 23 August 1985.  The deed recited the
Channel 9 broadcast, and the settlement, and contained:
    (1)   a release of Channel 9 from all actions against it arising out of
          Channel 9's broadcast;
    (2)   a release of Channel 9 from all actions against it "arising out of
          any other publication of the matter complained of by or on behalf
          of (Channel 9) its servants agents and related companies"; and
    (3)   a release of Channel 9 (there is a typing error in the deed, but
          Channel 9 is clearly meant) and related companies from all actions
          "arising out of or in respect to the publication or broadcast of
          any part of the matter complained of over television station TCN 9
          Sydney or over any other radio or television station or by any
          other means whatsoever or in respect of or arising out of any
          other publication whatsoever by or on behalf of (Channel 9 and)
          its related companies".  (Emphasis added.)

17.  The learned trial Judge construed this deed as involving a release of
Channel 7, not as a consequence of any doctrine of the law operating in
respect of a joint tortfeasor, but as a matter of construction of its terms.
With respect, we cannot so understand the deed.  It seems to us quite
expressly to have released Channel 9 and its related companies - but Channel 7
was not a related company of Channel 9 - in respect both of the telecast sued
upon in New South Wales, and also of any other publication of the libel by
Channel 9.

18.  The appeal was argued on the footing that the programme as televised in
the Australian Capital Territory plainly involved a publication by Channel 9.
It was Channel 9 which transmitted the programme to Black Mountain to be
received by Channel 7.  When Channel 7 then telecast the programme, Channel 9
and Channel 7 were joint tortfeasors, each of whom was responsible for the
publication of the libel in the Australian Capital Territory.  On this basis,
although the deed was not expressed as a release of Channel 7, at common law
it would have had that effect.  This is because of the principle that a
release of one joint tortfeasor operates as a release of all: Duck v. Mayeu
(1892) 2 QB 511 at 513; Cutler v. McPhail (1962) 2 QB 292; Ramsay v. Pigrim
(1968) 118 CLR 271 at 286, 288, per Taylor J (with whom Kitto J agreed), and
at 290, per Windeyer J; J F and B E Palmer Pty Ltd v. Blowers and Lowe Pty Ltd
(1987) 16 FCR 89; and see Glanville Williams on Joint Torts and Contributory
Negligence (1951) para. 11, and Halsbury 4th ed. vol. 9 para. 627.

19.  However, the appellant argued that a by-product of the enactment of s. 11
of the Law Reform (Miscellaneous Provisions) Act 1955 (ACT), subss. 1, 2 and 3
of which reflect with only minuscule alterations the provisions of s. 5(1)(a)
and (b) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), was to
abolish the common law rule. Accordingly, it is necessary to set out the
relevant parts of those subsections of s. 11, to which, for reasons that will
become apparent, we have added subs. 4:
    "11. (1)      This section applies where damage is suffered by
      a person as a result of a tort (whether a crime or not).
      (2)   Judgment recovered against a tort-feasor (sic) liable
      in respect of the damage is not a bar to an action against
      any other person who would, if sued, have been liable as a
      joint tort-feasor in respect of the same damage.
      (3)   If more than one action is brought in respect of the
      damage by or on behalf of the person by whom it was suffered
      ... against tort-feasors liable in respect of the damage
      (whether as joint tort-feasors or otherwise) -
            (a)   the sums recoverable under the judgments given
                  in those actions by way of damages do not in the
                  aggregate exceed the amount of the damages
                  awarded by the judgment first given; and
            (b)   in any of those actions other than that in which
                  judgment is first given, the plaintiff is not
                  entitled to costs unless the court is of opinion
                  that there was reasonable ground for bringing
                  the action.
      (4)   A tort-feasor liable in respect of the 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, but no
      person is entitled to recover contribution under this
      section from a person entitled to be indemnified by him or
      her in respect of the liability in respect of which the
      contribution is sought."

20.  The first thing to notice about s. 11 is that it is not at all concerned
with any question of the effect of a release.  The relevant subsections are
concerned with the rule which barred a plaintiff who had recovered judgment
against one joint tortfeasor from then suing another; and with establishing
rules in respect of the recovery of damages by the bringing of successive
actions.  It is not, therefore, surprising that Professor Glanville Williams,
who wrote after the enactment in the United Kingdom of provisions to the same
effect, was not troubled by any thought that they had actually changed the law
of release, which he considered might well be changed.  Nor for many years was
any such suggestion made by anyone.  It was not, for instance, made by Salmon
J (as Lord Salmon then was) in Cutler v. McPhail (1962) 2 QB 292.  And in
Bryanston Finance Ltd v. de Vries (1975) QB 703 at 732 Lord Diplock said of
the corresponding provisions in the United Kingdom, which are to be found in
s. 6 of the Law Reform (Married Women and Tortfeasors) Act 1935:
    "The technical common law doctrine of 'release' is unaffected
      by the Act.  Such an agreement still has the effect in law
      of releasing all other joint tortfeasors as well, though
      courts nowadays are reluctant to construe an agreement with
      one tortfeasor as a release rather than a covenant not to
      sue him, unless it is plain that the agreement was intended
      by the plaintiff to operate also as a release of the other
      joint tortfeasors from their liability."
He continued in the next paragraph of his judgment to point out that the same
section "does have the result of abolishing in its entirety (emphasis added)
the technical common law doctrine of merger of the cause of action against all
joint tortfeasors in the first judgment recovered against any one of them."

21.  Immediately before the giving of the decision in Bryanston Finance, the
Privy Council had decided, in an advice delivered by Lord Salmon, the appeal
in Wah Tat Bank Ltd v. Chan Cheng Kum (1975) AC 507. There, it had been argued
that the statutory reform permitting successive actions against joint
tortfeasors did not permit the entry of successive judgments in a single
action in which more than one joint tortfeasor had been joined.  The Privy
Council emphatically rejected this artificial proposition.  In the course of
his reasons, Lord Salmon said (at 515):
    "According to the common law rule, anyone who suffered damage
      by reason of a tort jointly committed by a number of persons
      was deemed to have but one cause of action which merged in
      the first judgment which he might recover in respect of it
      ... .  Once he recovered final judgment against any
      tortfeasor, his cause of action in respect of that tort
      disappeared.  He was accordingly barred from subsequently
      recovering judgment against any other joint tortfeasor
      responsible for that tort whether in an action commenced
      before, at the same time as, or after the action in which a
      final judgment had already been recovered."
After discussing this rule at some length, he concluded (at 517), of a section
relevantly in the same terms as s. 11, "their Lordships consider that it
expresses with reasonable clarity the intention of the legislature to abolish
the common law rule in its entirety."

22.  In XL Petroleum (NSW) Proprietary Limited v. Caltex Oil (Australia)
Proprietary Limited (1985) 155 CLR 448 at 458, Gibbs CJ stated his agreement
with the view of the Privy Council and of Lord Diplock.  The question in XL
Petroleum was whether, separate actions being now permissible, verdicts in
differing amounts could be obtained on the basis that a particular tortfeasor
was liable to pay exemplary damages.  Gibbs CJ said (at 459-460):
    "Once it is accepted that more than one judgment may be given
      against joint tortfeasors for damages caused by a joint
      tort, whether damages are given in the same or in different
      proceedings, there can remain no foundation for the rule
      that only one sum can be awarded by the different judgments.
      The reason for the rule was that there was only one cause of
      action against the joint tortfeasors, but that is no longer
      the position - the statute has abolished, 'in its entirety'
      the old common law principle that a person who suffers
      damage by a joint tort has only one cause of action which
      merges in the first judgment recovered in respect of it.
      Surely the statutory provision was not intended to abolish
      only the doctrine of merger, for it was not primarily
      directed to the question of merger, and there is no reason
      for selecting one aspect of the principle rather than
      another as that which it was intended to affect; the whole
      principle should be held to have gone.  It seems to me
      impossible now to hold that there is any principle that
      would prevent a plaintiff from recovering different sums
      from different tortfeasors if he brings separate actions
      against them, provided that some are liable for exemplary
      damages and others are not, and the same must be true if the
      joint tortfeasors are all sued in one action."
Wilson J agreed with the Chief Justice, and Brennan J (in a separate judgment)
reasoned along similar lines.

23.  It is the proposition that the old law has been done away with "in its
entirety" upon which the argument in the present case fastened. Counsel said
that the effect given to a release at common law was also a consequence of the
same rule, and that it, too, had gone.  But it is plain that Gibbs CJ, when he
put the words "in its entirety" in inverted commas, was referring to the use
of those expressions by Lord Salmon and Lord Diplock, to whose advice and
judgment he had referred. They were not talking about the doctrine of release,
as Lord Diplock had made expressly clear.  Nor was Gibbs CJ The entire rule to
which they and he were referring was the rule concerning the bringing of
actions against joint tortfeasors in order to recover verdicts against them,
and the limitation placed upon the amount of a verdict as a corollary of the
rule.  The nature of a joint liability, as distinct from particular
essentially procedural problems which beset the enforcement of it, was neither
dealt with in the Law Reform provision nor under examination by Gibbs CJ, Lord
Diplock or Lord Salmon.  Cf Barisic v. Devenport (1978) 2 NSWLR 111.

24.  Just as Lord Diplock's express reference to the subject of release makes
it plain that the entire rule which he thought had gone did not involve in its
passing the doctrine of release, so Gibbs CJ also made it plain that he was
not dealing with the question of release.  In his judgment (at 456), he
referred to Duck v. Mayeu (supra), without any hint of disapproval, and
apparently accepting it; and (at 459) he said:
    "In Bryanston Finance Ltd v. de Vries Lord Diplock said that
      an agreement to release one joint tortfeasor still releases
      the others; it may be thought that this implies that the
      rule that the victim of a tort committed by joint
      tortfeasors has only one cause of action still applies, but
      the question that now falls for decision was not discussed."
This is to take the dictum of Lord Diplock as a brick upon which more might
have been built, although Gibbs CJ, of course, used another foundation for the
conclusion he actually reached.  But what is clear for present purposes is
that he accepted Lord Diplock's proposition without demur.

25.  Indeed, it is not to be thought that, if Gibbs CJ had intended to reject
what Lord Diplock had said, he would have failed even to mention the
acceptance by Kitto, Taylor and Windeyer JJ, in Ramsay v. Pigram (ubi cit.
supra), of the authority of Duck v. Mayeu.  Nor could that acceptance have
been ignored on the ground that they did not have their attention directed to
the possibility of some impact of the very law reform provisions now relied
on, for Taylor J cited Apley Estates Company Limited v. De Bernales (1947) Ch
217, where Somervell LJ (at 222) referred to that possibility.  What Taylor J
said (at 286) was the following:
    "Likewise, although the liability of joint tortfeasors is said
      to be joint and several in the sense that a plaintiff may,
      without objection sue one or more of them, it has
      consistently been held that the release of one of several
      joint tortfeasors operates to release all: Duck v. Mayeu
      (1892) 2 QB 511, and Apley Estates Co. Ltd. v. De Bernales
      (1947) 1 Ch 217.  In the former case A.L. Smith LJ
      speaking for the Court of Appeal said:
                  'It is, we think, clear law, that a release
            granted to one joint tortfeasor, or to one joint
            debtor, operates as a discharge of the other joint
            tortfeasor, or the other joint debtor, the reason
            being that the cause of action, which is one and
            indivisible, having been released, all persons
            otherwise liable thereto are consequently released.
            The case of Cocke v. Jennor (1614) Hob 66 (80 ER
            214) is distinct upon the point, and there are many
            subsequent cases to the same effect.'
      This passage was cited by the Court of Appeal with approval
      in Apley Estates Co. Ltd. v. De Bernales (1947) 1 Ch 217
      and as far as I can see has never been questioned."

26.  Leading textbooks have accepted that the law is as stated in Duck v.
Mayeu: Salmond and Heuston on the Law of Torts 19th ed. (1987) 498; Winfield
and Jolowicz on Tort 13th ed. (1989) 592; Gatley on Libel and Slander, 8th ed.
(1981), paras. 864 and 865; Fridman on the Law of Torts in Canada (1990) vol.
2 355.  Fridman cites the Canadian case Dixon v. The Queen in Right of British
Columbia (1979) 99 DLR (3d) 652, where (at 660-662) Ruttan J referred to
Halsbury (3rd ed.) vol. 37 para. 246 and to a number of decisions in support
of the continued application of Duck v. Mayeu.  When the matter went on appeal
to the British Columbia Court of Appeal, Taggart JA, who delivered the
judgment of the Court, said (Dixon v. The Queen in Right of British Columbia
(1980) 128 DLR (3d) 389 at 403):
    "If the settlement had taken the form of a settlement based in
      part upon a release by the plaintiffs of any liability on
      the part of the Ferry Authority and, if the acts causing the
      injuries to Mr Dixon had been those of the Ferry Authority
      and Hydro as joint tortfeasors, then the release of one
      joint tortfeasor would effect a release of the other."
In Australia, the second edition of Trindade and Cane: The Law of Torts in
Australia (1993) at 729 states that "the rule that a release discharges all
the tortfeasors still survives, although courts today might be unwilling to
interpret a document as a release rather than a covenant not to sue."

27.  It was after the decision of the High Court in XL Petroleum that Burchett
J decided J F and B E Palmer Pty Ltd v. Blowers and Lowe Pty Ltd (supra).
Burchett J followed the authority of Duck v. Mayeu and the view of Lord
Diplock, which his Honour understood to have been accepted by Gibbs CJ
Subsequently, this decision was cited by Sweeney J in Perrosax Pty Ltd v.
Jusco Pty Ltd (unreported, 8 December 1989), where his Honour's judgment shows
that he had reached the same conclusion independently.  Very shortly after the
delivery of judgment by the High Court in XL Petroleum, Finlay J, sitting in
the common law division of the Supreme Court of New South Wales, had also
accepted that "the agreement to release one joint tortfeasor still releases
the other": Delic v. Svrcek (unreported, 27 May 1985).

28.  Against these authorities may be set the doubt expressed by Professor
Fleming in his Law of Torts 8th ed. (1992) at 259, where he referred to the
rule that the release of one joint tortfeasor discharges all, citing Cutler v.
McPhail and J F and B E Palmer Pty Ltd v. Blowers and Lowe Pty Ltd, and then
added: "This rule has not been abrogated expressly except in Tasmania; but it
may have been implicitly: by authorising successive actions, the unity of the
common law action against all tortfeasors may have been severed in its
entirety."  This passage was referred to in the judgment of Beazley J in State
of New South Wales v. McCloy Hutcherson Pty Ltd (1993) 43 FCR 489, where (at
498) the conclusion was expressed, as an obiter dictum:
    "I consider that there is much force in the proposition that
      the rule, that a release of one joint tortfeasor operates in
      favour of all joint tortfeasors, did not survive the
      enactment of s 5(1) of the Law Reform (Miscellaneous
      Provision) Act.  Although Gibbs CJ in XL Petroleum
      referred uncritically to the comments of Lord Diplock in
      Bryanston Finance, his Honour's observation was obiter, and
      the matter was not the subject of detailed consideration.
      It is illogical that certain aspects of a rule are abrogated
      by a statute because the statute does away with the
      foundation upon which the rule is based, while other aspects
      of the rule remain, however this is the result of holding
      that the rule as to the release of joint tortfeasors
      survived the enactment of s 5.  Were it necessary to decide
      the point I would find that the rule as to release has also
      been abrogated by s 5."

29.  Quite apart from the difficulty of regarding the point, to which
Somervell LJ had referred as long ago as 1947, as having escaped notice
because not the subject of detailed consideration, and apart from the weight
of the authorities to which we have referred, there seem to us with respect to
be some difficulties in adopting this approach. Statutory reforms removing a
particular plank from the edifice of the common law do not necessarily bring
down whole sections of the structure just because a rule expressly changed or
abolished had an historical or a logical connection with other rules of the
common law.  To forbid such a consequence the rule has been established (and
should be adhered to: Corporate Affairs Commission of New South Wales v. Yuill
(1991) 172 CLR 319 at 322, per Brennan J) that Acts altering the common law
should be construed as doing so only so far as is necessary to give effect to
their provisions: Hocking v. Western Australian Bank (1909) 9 CLR 738 at 746;
American Dairy Queen (Q'ld) Proprietary Limited v. Blue Rio Proprietary
Limited (1981) 147 CLR 677 at 682-683, per Mason J, with whom Gibbs CJ,
Murphy, Aickin and Brennan JJ agreed; Pearce and Geddes on Statutory
Interpretation in Australia, 3rd ed. (1988), 104-105; or as Lord Reid put it
in Black-Clawson International Ltd v. Papierwerke Waldhof-Aschaffenburg (1975)
AC 591 at 614, "in the absence of any clear indication to the contrary
Parliament can be presumed not to have altered the common law further than was
necessary to remedy the 'mischief.'"  And where would the process stop?  The
rule in Duck v. Mayeu has itself linkages with the rule that a release by
accord and satisfaction of one covenantor operates as a release of all other
covenantors undertaking the same obligation: see Deanplan Ltd v. Mahmoud
(1993) Ch 151.  Indeed, the rule as stated in Duck v. Mayeu by A.L. Smith LJ
(see also Halsbury's statement of it in the paragraph cited earlier) was not
confined to a release of one joint tortfeasor, but was a wider rule about the
effect of a release upon a joint obligation, including a debt.

30.  Coming nearer to home, the present case provides an example of the kind
of problem that may arise from too ready an acceptance that a reform plainly
directed to a different issue may, almost by accident, have affected a settled
rule.  The very provision in s. 11 of the Law Reform (Miscellaneous
Provisions) Act 1955 (ACT), which we have set out above, contains, in subs. 4,
provision for recovery of contribution by one joint tortfeasor from another.
Had Parliament deliberately set out to amend the law in respect of the effect
of a release of a joint tortfeasor who settles a claim, some thought might
have been expected to have been given to the interrelationship between that
reform and the reform embodied in subs. 4.  Appropriate safeguards might have
been inserted into the provisions of the statute.  But if the earlier
subsections of s. 11 are simply strained by judicial interpretation to cover a
subject to which no attention was directed by the legislature, any
difficulties thus created will not have been overcome by the enactment, but
must simply be endured.  When the appellant brought his action against Channel
7, it cross-claimed against Channel 9, seeking contribution in respect of any
verdict which might be obtained by the appellant.  One must ask whether it is
consonant with justice that a joint tortfeasor who has made an agreed payment
in settlement of his liability, and taken a release in respect of it, should
then be liable to such a claim for contribution in respect of part of the very
same damage sustained by the injured party.  The release given by Mr Thompson
was clearly intended to cover all publications of this defamation for which
Channel 9 bore responsibility, and the amount paid was agreed on that basis.

31.  By the rule in Duck v. Mayeu, plaintiffs who have given releases in
relation to claims against joint tortfeasors have for at least the last one
hundred years known (unless they were negligently advised) the effect of what
they were doing, and joint tortfeasors who took such releases upon entering
into settlements have known where they stood. The amounts of settlements have
been determined accordingly.  But if the dictum in State of New South Wales v.
McCloy Hutcherson Pty Ltd is accepted, there can never be certainty about the
effect of such a release because claims for contribution may always turn out
to be made by joint tortfeasors subsequently sued.  Of course, an alert
releasee (once the supposed new rule becomes known) may seek some further
protection than the normal release, but it was the necessity to take special
technical steps, and the undesirability of complications of this kind, which
formed the basis of Professor Fleming's criticism of the existing law in the
first place.

32.  In making these comments about the practical effects of a decision
abolishing the rule in Duck v. Mayeu, we have not overlooked the possibility
that a released joint tortfeasor, against whom a claim for contribution is
subsequently made, might seek to rely on the release to support an argument
that he is not an "other tortfeasor who is, or would if sued have been, liable
in respect of the same damage" within s. 11(4), for the very reason that he
has been released.  But we do not think any contention to this effect could
succeed.  Quite soon after the enactment of provisions such as that contained
in s. 11(4), the question was raised whether a joint tortfeasor, against whom
a claim for contribution was made, could rely on a ground of defence which
would have defeated a claim made by the injured person against that joint
tortfeasor, if made at the time the claim for contribution arose.  One of the
early decisions is Nickels v. Parks (1948) 49 SR(NSW) 124. Jordan CJ (at 129)
made it clear that the claim for contribution lay if the joint tortfeasor
against whom it was brought "was liable to the injured party for the same
tort" (emphasis added), and this meant, as Davidson J made explicit (at 132),
that this joint tortfeasor must be a person who would have been liable "had he
been sued at any time for the injuries that resulted".  Thus, a statutory
defence which arose after some time had elapsed, and would then have barred an
action by the plaintiff, could provide no answer to a claim for contribution
made at the later time.  This view was also adopted in England: Harvey v. R.G.
O'Dell Ltd (1958) 2 QB 78 at 109.  It was accepted by the High Court of
Australia in Brambles Constructions Pty Limited v. Helmers (1966) 114 CLR 213,
where it was applied to prevent a claimant for contribution being barred by a
general limitation.  Following the decision in that case, Kerr J held in Alex
Kay Pty Ltd v. Fife (1966) 9 FLR 246 at 253 that a party against whom a claim
had been made was not liable because there "was never a point of time at which
the third party was liable or could have been held liable to the plaintiff,
and for this reason the defendant's claim for contribution must fail".  This
was not a case of a release after a liability had been incurred, but of a
prior agreement preventing a liability ever arising.

33.  So the position seems to be that when a joint tortfeasor and an injured
party negotiate to settle the injured party's claim for damages, they are
presented with alternative solutions having different consequences.  They may
achieve a settlement on the basis only that the injured party will covenant
not to sue the particular joint tortfeasor, in which case the covenantee is at
risk should another joint tortfeasor be sued and claim a contribution from
him, but the injured party has the benefit of a preserved right of action.
Or, they may enter into a release, which will solve the joint tortfeasor's
problem, but will do so by eliminating the contingency of a further action
against another joint tortfeasor.  As the law has been understood for a
considerable time now, each party will be advised of these alternatives, and
of the consequences, and a suitable settlement can be worked out.  The amount
of the settlement may differ according to the nature of the agreement reached.
In our opinion, it is not appropriate that a judicial decision (by which a
code designed to provide prospectively for the securing, so far as possible,
of the proper interests of all parties cannot be framed) should now be handed
down to disturb this situation.  Had Parliament attended to the question, it
might have provided that a settlement by release should no longer have the
effect given it by Duck v. Mayeu, but should, to the extent the settlement was
a reasonable one, bar a proceeding for contribution.  We cannot know, but we
can be certain of one thing - Parliament did not attend to the question
because it did not imagine it was reforming the law of release.

34.  There is a further reason for the exercise of caution in such an area as
this.  In Bitumen and Oil Refineries (Australia) Limited v. Commissioner for
Government Transport (1955) 92 CLR 200, the High Court dealt with the
interpretation of one of the paragraphs of s. 5(1) of the Law Reform
(Miscellaneous Provisions) Act 1946 (NSW).  In their joint judgment, Dixon CJ,
McTiernan, Webb, Fullagar and Taylor JJ said (at 211):
    "The provision under consideration has been transcribed from
      the English statute in a number of jurisdictions and it is
      highly convenient that it should be given the meaning and
      application which it has received in England."
The meaning and application presently in question have, as we have shown, been
much more widely accepted than simply in England.  In our opinion, this Court
should not depart from the acceptance of the proposition that the common law
doctrine of "release" is unaffected by the Act.

35.  Accordingly, we would dismiss the appeal.  However, having regard to the
extent to which the appellant has been successful on the issues upon which the
decision against him was actually given, to the importance to the respondents
of the issue on which the appellant has failed, and to the special
circumstances of the case, we would make no order as to the costs of the
appeal.

JUDGE2

MILES J  This is an appeal from the Supreme Court of the Australian Capital
Territory (Gallop J) in which the appellant unsuccessfully sued the first
respondent (Capital TV) for damages for defamatory statements made during a
television broadcast.  The first respondent joined the two second respondents
as third parties for the purpose of seeking contribution in the event of the
appellant recovering judgment against Capital TV.

2.  The broadcast was "live to air" from the studios of the second respondent
(TCN Channel 9) in Willoughby in Sydney via a microwave link to the Capital TV
transmitting site on Black Mountain in the ACT.  From there it was relayed by
further microwave link to the Capital TV studios at Watson and thence
broadcast by Capital TV to viewers in the ACT and adjoining regions of New
South Wales.

3.  The trial judge found that the appellant had proved the defamatory
meanings relied upon (to the effect that the appellant had sexually abused his
stepdaughter) but dismissed the claim in the light of the defences raised.
One defence was that of "innocent dissemination".  His Honour found that
defence established.  The other was a defence that the liability of Capital TV
had been avoided by a deed executed on 23 August 1985 by the appellant and by
TCN Channel 9 (the deed).  The latter defence was raised in two alternative
ways.  It was contended on behalf of Capital TV that the terms of the deed had
the effect of a covenant not to sue Capital TV; alternatively it was contended
that the deed released a joint tortfeasor, TCN Channel 9, from liability for
the plaintiff's cause of action, and that by operation of the release of the
joint tortfeasor the appellant no longer had any cause of action against
Capital TV.  With regard to this second defence the trial judge found that the
terms of the deed evinced an intention on the part of the appellant to release
Capital TV.  His Honour also expressed the view that insofar as the deed
released the joint tortfeasor, TCN Channel 9, it did not operate so as to
extinguish any cause of action that the appellant might have had against
Capital TV.

4.  It is now submitted on behalf of the appellant that his Honour was in
error both in finding the defence of innocent dissemination established and in
his construction of the deed to the effect that it was intended by the
plaintiff to release Capital TV from liability.  By notice of contention TCN
Channel 9 contends that his Honour ought to have found that the deed released
Capital TV by virtue of the release of the joint tortfeasor TCN Channel 9.

5.  The following facts relevant to the defence of innocent dissemination were
found by the trial judge and are not challenged.  The libel was contained in
the broadcast on Tuesday, 21 February 1984 of "The Today Show", a regular
current affairs television program broadcast between 7 a.m. and 9 a.m. from
Monday to Friday.  The program usually consisted of live interviews in the TCN
Channel 9 studios in Willoughby between a television presenter and a guest,
together with half hourly news segments, advertisements and other material.
The live interviews were not the subject of prepared scripts.  Capital TV had
no prior knowledge of what was being put to air on the program on any
particular day.  There was no arrangement for editing except to the extent
that TCN Channel 9 kept Capital TV informed of the times scheduled for
advertisements or commercial breaks.  During these breaks Capital TV inserted
its own commercial material suitable for viewing by local audiences.  Apart
from the commercial breaks, TCN Channel 9 was in complete control of the
contents of the program.  Both TCN Channel 9 and Capital TV intended and
expected that, again apart from the commercial breaks, what was broadcast from
Sydney would be disseminated through the Capital TV transmitter in Canberra to
local audiences without alteration.

6.  The trial judge also found that there was nothing in the evidence to
suggest that TCN Channel 9 or Capital TV was or ever had been other than an
entirely reputable television broadcaster.  Capital TV had no foreknowledge of
the content of what was to be broadcast and no forewarning that on the day in
question the broadcast was likely to contain anything defamatory.  Capital TV
had no reason to suspect that the program might contain offending material of
the nature contained in the libel of the appellant.  It might also be observed
that although Capital TV had the opportunity to view the program as it was
being broadcast (for the purpose amongst others of being alerted to the
appropriate moment to insert the local advertising material) there was no
suggestion that the circumstances were such that Capital TV should have
terminated the broadcast once the defamatory nature of the interview began to
become apparent.

7.  The defence of innocent dissemination (sometimes called innocent
publication or innocent republication) seems to have emerged with the decision
of the Court of Appeal in England Emmens v. Pottle  and Others (1885) 16 QBD
354.  It was more precisely formulated in the judgment of Romer LJ in
Vizetelly v. Mudie's Select Library (1900) 2 QB 170 at 180:
    "The result of the cases is I think that, as regards a person who is not
    the printer or the first or main publisher of the work which contains a
    libel, but has only taken, what I may call, a subordinate part in
    disseminating it, in considering whether there has been publication of
    it by him, the particular circumstances under which he disseminated the
    work must be considered.  If he did it in the ordinary way of his
    business, the nature of the business and the way in which it was
    conducted must be looked at; and, if he succeeds in shewing (1.) that he
    was innocent of any knowledge of the libel contained in the work
    disseminated by him, (2.) that there was nothing in the work or the
    circumstances under which it came to him or was disseminated by him
    which ought to have led him to suppose that it contained a libel, and
    (3.) that, when the work was disseminated by him, it was not by any
    negligence on his part that he did not know that it contained the libel,
    then, although the dissemination of the work by him was prima facie
    publication of it, he may nevertheless, on proof of the before-mentioned
    facts, be held not to have published it.  But the onus of proving such
    facts lies on him, and the question of publication or non-publication is
    in such a case one for the jury."

8.  The principle contained in this passage has been recognized and applied
many times since then in courts in England.  The defence of innocent
dissemination has been applied in Canada: see Brown, Law of Defamation,
Toronto, 1987, p.285 and cases cited.  But there is no reported case of it
having been applied in Australia, nor were we referred to any unreported cases
of relevance.  Gallop J observed in the present case that, whilst the defence
appears hitherto to have been recognized in relation to books and newspapers,
there is no reason in principle why it should not apply to the publication of
defamatory statements made during radio and television broadcasts.

9.  Gallop J referred to a passage from the judgment of Lord Denning in
Goldsmith v. Sperrings Ltd and Others (1977) 1 WLR 478 at 487, which contains
the following:
    "The distributors of newspapers and periodicals are nothing more that
    conduit pipes in the channel of distribution.  They have nothing
    whatever to do with the contents.  They do not read them - there is no
    time to do so.  Common sense and fairness require that no subordinate
    distributor - from top to bottom - should be held liable for a libel
    contained in it unless he knew or ought to have known that the newspaper
    or periodical contained a libel on the plaintiff himself; that is to
    say, that it contained a libel on the plaintiff which could not be
    justified or excused; and I should have thought that it was for the
    plaintiff to prove this.  And the Restatement bears this out: see
    Restatement, Torts, 1965 Supplement, s.581, Comment."

10.  Counsel for the appellant did not suggest that defence of innocent
dissemination was not available in Australia, but submitted that the nature of
the defence was such that it should not be applied to a television broadcast.
It was submitted that a rebroadcaster of a television program such as Capital
TV in the present case was in a different position from the disseminator of
printed material.  The television rebroadcaster takes it upon itself to engage
in that activity for commercial reasons in the knowledge that it has no
opportunity or capacity to control the content of the material being
broadcast. Further, so it was submitted, the television rebroadcaster has the
capacity to cause infinitely greater harm by the broadcast of defamatory
material than has the bookseller or news vendor.  There is some support for
these submissions in the United States.  Lord Denning points out that the
American Restatement supports the defence of innocent dissemination in the
case of a distributor of newspapers and periodicals.

11.  The Restatement of the Law of Torts, 2nd ed. (1976) in s.581 under the
heading "Transmission of Defamation Published by Third Person" states as a
rule that one who only delivers or transmits defamatory matter published by a
third person is liable if, but only if, he knows or has reason to know of its
defamatory character, and that by way of exception, one who broadcasts
defamatory matter by means of radio or television is subject to the same
liability as an original publisher. It also states that a news dealer is not
liable for defamatory statements appearing in the newspapers or magazines he
sells if he neither knows nor has reason to know of the defamatory article.
The protection of the rule is said to extend to bookshops, libraries and
telegraph companies.  But a radio or broadcasting company is regarded as more
analogous to a newspaper publisher than to a news dealer and as "an original
primary publisher" is liable for the broadcast of defamatory material.  The
Restatement does not distinguish between original broadcasting and
rebroadcasting.

12.  According to American Jurisprudence, 2nd ed., Vol. 50, 862-863, many
cases hold that "even in the absence of the slightest negligence on their
part, radio and broadcasting companies are absolutely liable for the
broadcasting of defamatory statements".  The work cites Coffey v. Midland
Broadcasting Co. 8 F Supp 889.  In that case a Missouri broadcaster carried a
program from New York in circumstances where the operators of the local
station had no means of knowing that defamatory words would be carried on the
network program and no means of stopping the program on their utterance.  The
local broadcaster was nevertheless found liable in defamation.

13.  The question therefore arises whether this Court should regard the
question of the application of the defence of innocent dissemination to a
television rebroadcast as free from authority, and, if so, whether this Court
ought to formulate what is in effect a special rule bearing in mind the
submissions put on behalf of the appellant and the principles enunciated in
the American texts.  It may be that with the development of modern technology
this Court could find itself in a similar position to that of the Court of
Appeal in 1885 in Emmens v. Pottle, when the mass circulation of newspapers
had led to a perceived need to resolve problems which the law had not
previously confronted. In my own view, whilst there is much to be said in
favour of the submissions and of the American approach, they raise issues
which are essentially matters of policy rather than issues of law.  There is a
real question as to whether they should be resolved by a court or by the
elected legislature.

14.  I agree with Gallop J that there is no logical reason, in accordance with
the ordinary processes of the development of the law through judicial
decision, why the defence of innocent dissemination or innocent republication
should be restricted to printed material and not extended to television
broadcasts.  What Lord Denning said about "conduit pipes in the channel of
distribution" is applicable to the dissemination of television broadcasts as
it is to the distribution of newspapers.  To deny the extension of the
principle to television broadcasting would, in my view, be a decision of
policy rather than an application of judicial reasoning.  Accordingly, I think
that Capital TV was entitled to succeed upon the defence of innocent
dissemination and the first ground of appeal must fail.

15.  The further ground of appeal relates to the deed executed by the
appellant and TCN Channel 9 on 23 August 1985.  Before the deed was executed
the appellant had sued TCN Channel 9 in the Supreme Court of New South Wales
claiming damages for the broadcast of the offending material within the State
of New South Wales.  Those proceedings were terminated by the execution of the
deed.  The terms of the deed are as follows:
    "THIS DEED is made the 23rd day of August 1985
    BETWEEN:EDWARD CECIL THOMPSON of Captain's Flat in the State of New
    South Wales
    (hereinafter called "the Releasor") of the one part
    AND:TCN CHANNEL NINE PTY LIMITED of 54-58 Park Street, Sydney in the
    said State
    (hereinafter called "the Releasee") of the other part
    WHEREAS:
    A.The Releasee is the licensee of the television station TCN Channel
    Nine;
    B.An action has lately been commenced in the Supreme Court of New South
    Wales
    No. 11170 of 1984 by the Releasor against the Releasee claiming damages
    for defamation arising out of the publication of certain words and
    images ("the matter complained of") by the Releasee on a television
    program called "The Today Show" on 21 February, 1984;
    C.The Releasor has incurred costs and expenses in and about the
    prosecution of
    his claim and in and about certain interlocutory proceedings taken in
    connection therewith;
    D.It has been agreed between the Releasor and the Releasee that the
    Releasee
    without admitting any liability whatsoever will pay to the Releasor the
    sum of Fifty Thousand Dollars ($50,000.00) in full satisfaction of his
    claim and all costs and expenses incurred by him in and about the
    prosecution of the same;
    E.For the consideration aforesaid the Releasor has agreed to give the
    covenants
    hereinafter contained.
    NOW THIS DEED WITNESSETH AS FOLLOWS:
    That without admission of liability and in consideration of the Releasee
    paying to the Releasor or his solicitors the sum of Fifty Thousand
    Dollars ($50,000.00) inclusive of all costs, disbursements and expenses
    and without admission of liability, the Releasor for himself, his heirs,
    executors and assigns hereby:
    1.Forever releases and discharges the Releasee and its servants agents
    and
    related companies their servants and agents from all actions suits
    causes of action claims and demands whatsoever which the Releasor now
    has or at any time hereafter may have or but for the execution of this
    Deed could would or might have had against the Releasee or any of its
    servants agents or related companies their servants and agents arising
    out of or in respect of the publication of the said matter the subject
    of the said action.
    2.Forever releases and discharges the Releasee and its servants agents
    and
    related companies their servants and agents from all actions suits
    causes of action claims and demands whatsoever which the Release now has
    or at any time hereafter may have or but for the execution of this Deed
    could would or might have had against the Releasee or any of its
    servants agents or related companies arising out of any other
    publication of the matter complained of by or on behalf of the Releasee
    its servants agents and related companies, their servants and agents up
    to and including the date of this Deed relating in any way to the
    Releasor.
    3.Forever releases and discharges the Releasor and its servants agents
    and
    related companies from all actions suits causes of action claims and
    demands whatsoever which the Releasor now has or at any time hereafter
    may have or but for the execution of this Deed could would or might have
    had against the Releasee or any of its servants agents or related
    companies arising out of or in respect to the publication or broadcast
    of any part of the matter complained of over television station TCN9
    Sydney or over any other radio or television station or by any other
    means whatsoever or in respect of or arising out of any other
    publication whatsoever by or on behalf of the Releasor its related
    companies servants and agents up to and including the date of this Deed
    relating in any way to the Releasor.
    4.Covenants that in any proceedings which he may bring in the future
    against the
    Releasee or any of its servants agents or related companies, their
    servants and agents no use will be made by him of this Deed or of any
    publication of the matter complained of or of any publications made by
    or on behalf of the Releasee its servants and agents and related
    companies their servants and agents up to and including the date of this
    Deed.
    5.Covenants that he will not make any public or private comment or
    statement in
    relation to the litigation instituted by him against the Releasee or the
    settlement thereof or the terms of this Deed.
    6.Covenants that he will forthwith discontinue the said action and will
    file in
    the said court within ten days of the date hereof a Notice of
    Discontinuance of the same and serve a copy thereof on the Releasee's
    solicitors.
    AND IT IS HEREBY AGREED
    That for the purpose of this Deed a company shall be related to another
    company if it is so deemed by the application of the provisions of
    Section 7 of the Companies Act, 1961 (New South Wales) (as amended).
    IN WITNESS WHEREOF the parties have hereunto set their hands and seals
    the day and year first hereinbefore written.
    THE COMMON SEAL of      )
    TCN CHANNEL NINE PTY    )
    LIMITED was hereunto    )
    affixed in accordance with)
    its Articles of Association  )
    and in the presence of: )             (Common seal)
              (Signed)
    SIGNED SEALED AND       )
    DELIVERED by the said   )
    EDWARD CECIL            )
    THOMPSON in the         )
    presence of:            )                      (Signed)
               (Signed)"

16.  The case for Capital TV as it relies on the deed falls into two parts.
First, it is submitted that on their true construction the words of the deed
should be read as a covenant not to sue TCN Channel 9 for the broadcast in
question, and further, not to sue Capital TV either.  The second and
alternative submission, which is not unrelated to the first, is that the deed
is by its nature truly a release and not merely a covenant not to sue, so that
it operates with the effect of releasing from liability not only TCN Channel 9
but also all persons who participated jointly in the conduct which provides
the cause of action upon which the appellant as releasor would have been
entitled to rely but for the release.

17.  An agreement which settles or compromises an action brought against a
joint tortfeasor will be construed as a covenant not to sue and not as a
general release which extinguishes the cause of action "unless it is plain
that the agreement was intended by the plaintiff to operate as a release to
the other joint tortfeasors from their liability": Bryanston Finance Ltd and
Others v. de Vries and Another (1975) 1 QB 703 per Diplock LJ at 732.

18.  In my view, the deed cannot be construed as a covenant not to sue Capital
TV.  It does not evince an intention that the appellant intended by its terms
to render Capital TV immune from action for liability arising out of the
publication of the matter complained of by way of broadcast by Capital TV from
its Watson studios. Each of paragraphs 1 to 4 of the operative clauses of the
deed are explicit in identifying the persons who are to have the benefit of
their provisions.  Those persons are "the releasee or any of its servants
agents or related companies their servants and agents".  The trial judge
concluded that Capital TV was not a servant or agent of TCN Channel 9 in
relation to the broadcast in question nor in any other relevant respect and
that finding is not challenged.  Similarly it is not contended that his Honour
should have found that TCN Channel 9 and Capital TV were related companies.
Capital TV transmitted the broadcast in its own right and in no way as the
agent or representative of TCN Channel 9.

19.  Clause 1 of the deed restricts the release to cause or causes of action
in respect of which proceedings No. 11170 of 1984 were brought in the Supreme
Court of New South Wales.  Those proceedings claimed damages arising out of
the broadcast to an audience in New South Wales through the television
broadcasting station known as TCN Channel 9.  There was no allegation that the
broadcasting station was situated outside New South Wales.  The evidence in
the present case shows that it was at Willoughby in Sydney.  The cause of
action in the proceedings in New South Wales is distinct from the cause of
action in the proceedings in the ACT Supreme Court.  Clause 1 cannot be read
to extend to the broadcast in the ACT by Capital TV.

20.  Clause 2 of the deed extends the release from the cause of action in
proceedings No. 11170 of 1984 to all causes of action arising from any other
publication or broadcast whatsoever of the matter complained of, but so long
as the other publication is by or on behalf of TCN Channel 9, its related
companies servants and agents.

21.  Clause 3 purports to further extend the release to all causes of action
arising from publication or broadcast of the matter complained of over any
radio or television station or by any other means.  It is difficult to see
what the essential difference is between clause 2 and clause 3.  In any event,
clause 3 is, like clause 2, restricted to other publications by or on behalf
of TCN Channel 9, its related companies servants and agents.

22.  Clause 4, which relates to future proceedings, cannot be read to include
Capital TV within its provisions.

23.  As the publication by Capital TV was not on behalf of TCN Channel 9 and
as Capital TV was not a related company servant or agent of TCN Channel 9,
clauses 1 to 4 do not by their terms affect the liability for the publication
of the libel in the ACT by Capital TV.  Nor do the remaining clauses of the
deed have any such effect.

24.  Furthermore, in seeking to rely upon the provisions of the deed to which
it is not a party, Capital TV faces the difficulty of lack of privity of
contract.  "It must be accepted that, according to our law, a person not a
party to a contract may not himself sue upon it so as directly to enforce its
obligations.":  Coulls v. Bagot's Executor and Trustee Company. Limited and
Others (1967) 119 CLR 460 at 478 per Barwick CJ Although the rule has been
criticised and in some jurisdictions abolished by statute, it is well
entrenched.  If A covenants with B not to sue C, and A subsequently sues C, C
will not be able to raise by way of defence the covenant between A and B.
That is not to say that B does not have a right to performance of the
covenant, but B's right may not be enforced by C.

25.  In construing the deed, the trial judge took into account evidence given
by the appellant about what he took to be the meaning and effect of its
provisions.  Whilst no objection was taken to that evidence being called, it
does appear to be in breach of the parole evidence rule.  The deed of release
on the face of it represents the whole of the transactions between the parties
and there was nothing in the evidence of the appellant to justify a conclusion
that the deed did not constitute the totality of the agreement between the
appellant and TCN Channel 9.

26.  I conclude that on the true construction of the deed that it does not
operate as a covenant not to sue Capital TV and, further, if it did, the
doctrine of privity of contract would prevent Capital TV relying upon it as a
defence to the appellant's claim.

27.  However, the further submission is made that if the deed operates as a
true release from liability of any who is a joint tortfeasor, then it operates
for the benefit of all who would have been liable on the cause of action but
for the release.  It is true that at common law a release, like a judgment,
extinguishes the cause of action and thus deprives the releasor, who was
formerly entitled to enforce the cause of action against all who were
responsible for the conduct which gave rise to the cause of action, of any
remaining right to rely on it or enforce it.  Thus any joint wrongdoer is
entitled to rely upon the release to avoid liability on the cause of action,
not because of any contractual immunity but because there is no longer any
cause of action. The doctrine of privity of contract applies to the
enforcement of a covenant not to sue on a cause of action but does not apply
when the cause of action has been extinguished by release.

28.  An initial question in the present case is whether TCN Channel 9 and
Capital TV were joint tortfeasors, that is to say whether the conduct of each
contributed to the broadcast in the ACT from the Capital TV studios at Watson.
The geographical and jurisdictional aspects are unusual.  TCN Channel 9 did
not commit any act within the ACT.  What it did was to transmit from its New
South Wales studios signals which, in accordance with an arrangement with
Capital TV, were picked up via microwave link by the Capital TV transmitter on
Black Mountain, further transmitted by Capital TV to its studio at Watson, and
then broadcast or rebroadcast from there to the viewing audience.  That, in my
view, gives rise to a sufficient nexus between the conduct of TCN Channel 9
and that of Capital TV to lead to the conclusion that each participated in the
broadcast.  The fact that the conduct of TCN Channel 9 occurred outside the
ACT does not, in my view, stand in the way of a conclusion that TCN Channel 9
participated jointly with Capital TV in the broadcast from the studio of the
latter in the ACT.

29.  The next question is whether the principle that the release of one joint
tortfeasor releases all joint tortfeasors has been affected by s.11 of the Law
Reform (Miscellaneous Provisions) Act 1955 (ACT).  That section provides as
follows:
    "11.(1)  This section applies where damage is suffered by a person as a
    result of a tort (whether a crime or not).
          (2)  Judgment recovered against a tort-feasor liable in respect of
    the damage is not a bar to an action against any other person who would,
    if sued, have been liable as a joint tort-feasor in respect of the same
    damage.
          (3)  If more than one action is brought in respect of the damage
    by or on behalf of the person by whom it was suffered, or for the
    benefit of the estate, or of the wife, husband, brother, sister,
    half-brother, half-sister, parent or child, of that person against
    tort-feasors liable in respect of the damage (whether as joint
    tort-feasors or otherwise) -
    (a) the sums recoverable under the judgments given in those actions by
    way
    of damages do not in the aggregate exceed the amount of the damages
    awarded by the judgment first given; and
    (b) in any of those actions other than that in which judgment is first
    given, the plaintiff is not entitled to costs unless the court is of
    opinion that there was reasonable ground for bringing the action.
          (4)  A tort-feasor liable in respect of the 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, but no person is entitled to recover
    contribution
    under this section from a person entitled to be indemnified by him in
    respect of the liability in respect of which the contribution is sought.
          (5)  Where the tort causing the damage was, or the torts causing
    the damage were, committed by the husband or wife of the person
    suffering the damage and some other person, that other person may
    recover contribution as mentioned in the last preceding sub-section from
    the husband or wife, as if the husband or wife had been liable to the
    person suffering the damage."

30.  There is no judicial authority on the precise question whether the
provision in sub-s.11(2) relating to a judgment recovered against a joint
tortfeasor has the effect that the release of one joint tortfeasor from
liability is no bar to an action against any other joint tortfeasor.

31.  The provisions of similar legislation in New South Wales were considered
by the High Court in XL Petroleum (NSW) Proprietary Limited v. Caltex Oil
(Australia) Proprietary Limited (1985) 155 CLR 448.  That was a case concerned
with the question whether exemplary damages could be awarded against one only
of a number of joint tortfeasors who were found liable for compensatory
damages.  Gibbs CJ at 456 set out the common law principles, namely that
although two or more joint tortfeasors may commit a tort, there is only one
cause of action, that a judgment obtained against one joint tortfeasor is a
bar to an action against the others for the same cause of action, even if the
judgment remains unsatisfied, (the rule in Brinsmead v. Harrison (1871) LR 7
CP 547) and that a cause of action arising out of a joint tort merges in the
first judgment obtained.  His Honour added, "On the same principle a release
of one tortfeasor released all" and cited Cocke v. Jennor (1614) Hob 66, (80
ER 214) and Duck v. Mayeu (1892) 2 QB 511 at 513.   In the latter case it was
said by A.L. Smith, LJ for the Court of Appeal:
    "It is, we think, clear law, that a release granted to one joint
    tortfeasor, or to one joint debtor, operates as a discharge of the other
    joint tortfeasor, or the other joint debtor, the reason being that the
    cause of action, which is one and indivisible, having been released, all
    persons otherwise liable thereto are consequently released".

32.  The Court of Appeal decided nevertheless that the letter written by the
plaintiff's solicitor acknowledging receipt of two guineas "in full discharge
of your personal liability ..... without prejudice to my client's claim
against Miss M. Mayeu" was a covenant not to sue the joint debtor and not a
release of the joint debt.  The enunciation of principles of law in the
passage quoted was therefore obiter.

33.  In XL Petroleum, Gibbs CJ expressed the view that the rule in Brinsmead
v. Harrison and the underlying common law principle that there was only one
cause of action were abolished by the statute and said at 459-60:
    "The reason for the rule was that there was only one cause of action
    against the joint tortfeasors, but that is no longer the position - the
    statute has abolished, 'in its entirety' the old common law principle
    that a person who suffers damage by a joint tort has only one cause of
    action which merges in the first judgment recovered in respect of it.
    Surely the statutory provision was not intended to abolish only the
    doctrine of merger, for it was not primarily directed to the question of
    merger, and there is no reason for selecting one aspect of the principle
    rather than another as that which it was intended to affect; the whole
    principle should be held to have gone.  It seems to me impossible now to
    hold that there is any principle that would prevent a plaintiff from
    recovering different sums from different joint tortfeasors if he brings
    separate actions against them, provided that some are liable for
    exemplary damages and others are not, and the same must be true if the
    joint tortfeasors are all sued in one action."
Brennan J said at 466:
    "The rules prescribed by pars.(a) and (b) of s.5(1) do not diminish the
    common law right of a plaintiff to sue any or all joint tortfeasors for
    compensatory damages and, on recovering a judgment, to enforce it
    against any or all of the tortfeasors against whom the judgment is
    given.  At common law, if the judgment debtor from whom the plaintiff
    first sought satisfaction of the judgment was impecunious, satisfaction
    might be sought from other judgment debtors until the whole of the
    judgment debt was paid.  Under the statute, the plaintiff's right to
    recover a judgment against and to seek satisfaction from any or all
    joint tortfeasors is enhanced by the statutory right to bring successive
    actions against each joint tortfeasor.  A plaintiff may now recover a
    separate judgment against each joint tortfeasor and he may seek
    satisfaction of each judgment recovered from the judgment debtor,
    subject to s.5(1)(b) which precludes recovery of sums by way of damages
    in excess of the amount of the damages awarded by the judgment first
    given.  As s.5(1)(a) confers on a plaintiff the right to recover
    judgments in successive actions against the respective tortfeasors, the
    unity of the common law cause of action against all joint tortfeasors is
    severed."

34.  There has been a divergence of opinion in this Court as to the effect of
provisions like s.11.  In J.F. and B.E. Palmer Pty Ltd v. Blowers and Lowe Pty
Ltd (1987) 75 ALR 509, Burchett J took the statement of principle in Duck v.
Mayeu to be accepted by Gibbs CJ in X L Petroleum and also by Lord Diplock in
Bryanston Finance Ltd v. de Vries where it was said of similar legislation in
England: "The technical doctrine of release is unaffected by the Act."

35.  On the other hand, in State of New South Wales v. McCloy Hutcherson Pty
Ltd and Others (1993) 116 ALR 363, Beazley J expressed the view that the
"rule" in Duck v. Mayeu that release of one joint tortfeasor operates as a
release of all joint tortfeasors was abrogated by the statutory provisions.
The view so expressed, however, was obiter and not necessary to her Honour's
conclusions because she found as a matter of construction that the
arrangements in question were not intended to operate as a release at all but
simply as individual covenants not to sue.

36.  Gallop J observed in the Supreme Court that there was no submission on
behalf of the appellant to the effect that the common law rule had been
abrogated by s.11.  However, having rejected the contention of Capital TV that
TCN Channel 9 was not a joint tortfeasor, his Honour found himself persuaded
by the reasons of Beazley J to the effect that the release of TCN Channel 9 as
a tortfeasor did not operate to release Capital TV.  Again, however, because
of the view Gallop J had taken as to the construction of the deed, that is to
say that it expressed the intention of the parties that Capital TV be released
from its liability, his Honour's view as to the effect of s.11 was, like that
of Beazley J, obiter and not necessary to his decision.

37.  Having come to the contrary view as to the construction of the deed, I
should express my own opinion as to the effect of s.11.  Again, it is not
strictly necessary to do so in the light of my conclusion that Capital TV
should succeed on its defence of innocent dissemination.  However, if that
conclusion be wrong, the matter of the effect of the release must be
determined.  That matter should be determined as far as possible in the light
of the judgments of the High Court in XL Petroleum.  It is true that that case
was not concerned with the effect of a release but with the question whether
the plaintiff could hold a sum of damages including exemplary damages awarded
against a single tortfeasor when in the same action the jury had awarded a
lesser sum by way of compensatory damages only against the other joint
tortfeasors.  Nevertheless, the expression of opinion by Gibbs CJ (with whom
Mason J, as he then was, Murphy J and Wilson J agreed) and of Brennan J, to
the effect that s.11 abolishes the common law rule that the cause of action
against all joint tortfeasors merges in the first judgment recovered, must be
binding on this Court. Accordingly, the appellant, having released the joint
tortfeasor TCN Channel 9, is not precluded thereby from proceeding to recover
judgment against the other joint tortfeasor Capital TV.  For those reasons I
would dismiss the notice of contention filed on behalf of Capital TV.

38.  However, because Capital TV is entitled to succeed on the defence of
innocent dissemination, as Gallop J held, the appeal should be dismissed with
costs and I would so order.