The ACT Court of Appeal (majority of Burns and Katzmann JJ, Higgins CJ dissenting) held that commencing separate defamation proceedings against different corporate defendants within the same publishing group, in respect of substantially the same defamatory matter, does not constitute an abuse of process even where the purpose is to avoid the statutory damages cap in s 139F of the Civil Law (Wrongs) Act 2002 (ACT). Where s 133 does not require leave because the defendants are different legal entities, a plaintiff has a presumptive right to bring separate proceedings and is prima facie entitled to a separate damages cap in each proceeding. Consolidation should not be ordered where it would deprive a plaintiff of that substantive entitlement, following Buckley v Herald & Weekly Times Pty Ltd [2009] VSCA 118. Higgins CJ dissented, holding that consolidation should be ordered where the defendants are associated entities publishing substantially the same matter and the plaintiffs share the same reputation, as permitting the split would artificially circumvent the statutory cap.
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