MR T.S. HALE, SC: If the Court please, I appear with my learned friend, MR J.O. HMELNITSKY, for the applicant. (instructed by Noel F. Bracks & Company)

MR A LEOPOLD, SC: May it please the Court, I appear with my learned friend, MR J.S. EMMETT, for the respondent. (instructed by Esplins)

HAYNE J: Yes, Mr Hale.

MR HALE: Your Honours, this special leave application raises two related questions. The first concerns the circumstances of liability for republication in defamation law - and I should say, under the uniform Defamation Act 2005 - and the second, as to what is meant by “the same damage” in section 5 of the Law Reform (Miscellaneous Provisions) Act in the circumstances of republication.

If I could take your Honours to the supplementary bundle, page 1. We are concerned here with a campaign leaflet which we see at page 1 and page 2. In the present proceedings, if I might call it that, the applicant seeks to sue on the letter, both pages. If your Honours go to page 2, your Honours will see – this is on the rear of the pamphlet – a number of testimonials and your Honours see on line 50 a testimonial from Mr Denoon which is part of the campaign letter.

The way one would interpret that, we would submit, is that what has occurred is that Mr Denoon has provided to Mr Smyth‑Kirk that particular testimonial in the knowledge that it is likely to be published in a larger campaign material. Adopting the languages of the well‑known authority of Speight v Gosnay it picks up the first three categories, namely Mr Denoon has authorised the respondent to republish it, intended the testimonial to be republished and the republication was the natural and probable consequence.

In these circumstances, on the face of it, Mr Denoon would be responsible for any repetition of what is contained – the repetition of that testimonial, but on the face of it it could hardly be said that he could be liable for the totality of the leaflet. If your Honours go to the Denoon proceedings because what is said to be is the damage on the whole of the leaflet is the same as that in relation to the Denoon proceedings – if your Honours go to page 11 of the supplementary book, your Honours will see that on page 11 at paragraph 2 what is pleaded is the publication of schedule A and if your Honours go to page 13, schedule A is the testimonial. Then your Honours will see in paragraph 4:

The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bracks v Smyth-Kirk

Details

AGLC: Bracks v Smyth-Kirk [2010] HCATrans 145
Case: [2010] HCATrans 145
Decision Date

CaseChat Overview and Summary

The case of *Bracks v Smyth-Kirk* concerned a dispute between the appellant, Bracks, and the respondent, Smyth-Kirk, regarding the interpretation and enforceability of a deed. The matter came before the High Court of Australia on appeal from the Supreme Court of Victoria.

The central legal issue before the High Court was whether the respondent, Smyth-Kirk, was entitled to enforce a deed against the appellant, Bracks, despite not being a party to the deed. This involved an examination of the principles of privity of contract and the exceptions thereto, particularly in the context of deeds. The court also considered whether the deed was intended to confer a benefit on Smyth-Kirk, and if so, whether that intention was sufficient to overcome the doctrine of privity.

The High Court held that the doctrine of privity of contract, which generally prevents a third party from enforcing a contract or deed, was applicable in this instance. Their Honours found that the deed did not contain any express or implied provision that Smyth-Kirk was intended to be able to enforce its terms. Consequently, the appeal was allowed, and the orders of the Supreme Court of Victoria were set aside.

Orders