COUNSEL: T S Hale SC with J O Hmelnitsky - Appellant A Leopold SC with M R Richardson - Respondent
SOLICITORS: Noel F Bracks & Company - Appellant Esplins - Respondent
CATCHWORDS: TORT – joint tortfeasors – successive defamation proceedings by plaintiff against different defendants – first proceedings settled in plaintiff's favour and judgment satisfied – second proceedings dismissed as abuse of process – whether claim in second proceedings brought in respect of “damage” claimed in first proceedings – Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(b) STATUTES – acts of parliament – interpretation – meaning of “damage” – Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(b) STATUTES – regulations – whether second proceedings abuse of process where defendant in second proceedings does not assert plaintiff fully recouped loss through settlement of first proceedings – Uniform Civil Procedure Rules 2005 (NSW), 13.4(1) APPEAL AND NEW TRIAL – appeal – points and objections not taken below – trial conducted on common ground that second proceedings were an abuse of process if s 5(1)(b) applied – whether appellant should be permitted to repudiate that position on appeal APPEAL AND NEW TRIAL – appeal – right of appeal – whether dismissal of proceedings as abuse of process final or interlocutory judgment – whether appeal involved matter amounting to $100,000 or more – Supreme Court Act 1970 (NSW), s 101(2)(r) WORDS & PHRASES – “damage”
[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.
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AGLC
Bracks v Smyth-Kirk [2009] NSWCA 401
Case
[2009] NSWCA 401
Decision Date
CaseChat Overview and Summary
The case of *Bracks v Smyth-Kirk* concerned an appeal from a decision of the Supreme Court of New South Wales that dismissed the appellant's defamation proceedings against the respondent as an abuse of process. The appellant had previously commenced defamation proceedings against a Mr Denoon, which were settled, and judgment was satisfied. The appellant then initiated the current proceedings against Mr Smyth-Kirk, alleging defamation arising from the same publication. The respondent argued that the second proceedings were precluded by section 5(1)(b) of the *Law Reform (Miscellaneous Provisions) Act 1946* (NSW), as the appellant had already recovered damages for the same damage in the first proceedings.
The primary legal issues before the court were whether the dismissal of the proceedings as an abuse of process constituted a final or interlocutory judgment for the purposes of an appeal, and whether section 5(1)(b) of the *Law Reform (Miscellaneous Provisions) Act 1946* (NSW) applied to prevent the appellant from recovering further damages. The appellant contended that the dismissal order was final, granting an appeal as of right, and that section 5(1)(b) did not apply because the damage claimed in the second proceedings was not the same as that claimed in the first, particularly as the appellant had only sued on specific words in the first proceedings and not the entire letter.
The Court of Appeal, comprising Allsop P, McColl and Young JJA, first considered the competence of the appeal. Citing established High Court authority, the Court held that an order staying or dismissing an action on the grounds that it is frivolous, vexatious, or an abuse of process is interlocutory. Therefore, the appeal was not an appeal as of right, and leave to appeal was required. The Court then addressed the application of section 5(1)(b). The primary judge had found that while the appellant had separate causes of action against each publisher, they were liable as joint tortfeasors for the same damage. If that damage was the same as that for which judgment was entered in the first proceedings, then section 5(1)(b) would operate to preclude further recovery. The Court agreed with the primary judge's reasoning that the appellant's claim in the second proceedings was in respect of the same damage as that for which judgment had been satisfied in the first proceedings, notwithstanding the appellant's arguments regarding the scope of the publications sued upon.
Leave to appeal was granted, but the appeal was ultimately dismissed with costs.
Orders
Orders of the court
1. Leave to appeal granted. 2. Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
It is relevant to note at this stage the correspondence between the imputations the appellant pleaded in the Smyth-Kirk proceedings and those pleaded in the Denoon proceedings. The first imputation in the Smyth-Kirk proceedings (3(a)) was identical with imputations 3(a) and 6(a) in the Denoon amended statement of claim. Imputation 3(b) in the Smyth-Kirk proceedings substantially corresponded to imputations 3(b), 6(b) and 6(a) in the Denoon proceedings. All four depended upon the proposition that the appellant’s conduct was to be criticised because, having attained the age of 72 years he refused to abide by the rules of the AJC and retire from the committee. Primary judgment The respondent’s argument on the motion was that the proceedings should be dismissed on the grounds that the appellant had already “recovered a sum in respect of the damage suffered by him as a result of the same publication” in the Denoon proceedings, that s 5(1)(b) of the 1946 Act precluded him from recovering any further sum and that the proceedings were, accordingly, an abuse of process: primary judgment (at [2]). After recording the history of the Denoon Proceedings, the primary judge noted (at [19]) that the verdict entered in favour of the appellant in the sum of $26,000 in the Denoon proceedings represented the amount of the damages awarded for the damage suffered by the appellant as a result of the tort committed by Mr Denoon. She then observed that the application before her turned on whether the Smyth-Kirk Proceedings were brought in respect of “that damage” against a tortfeasor liable in respect of the same damage. Before the primary judge, Mr Leopold submitted that s 5(1)(b) of the 1946 Act applied because “the ‘damage’ the subject of each proceeding was the same civil wrong, namely the single cause of action constituted by the publication by Mr Smyth-Kirk of the letter”: primary judgment (at [23]). The primary judge rejected that submission as not being strictly accurate, pointing out that even if the respondent and Mr Denoon were liable as joint tortfeasors in respect of the letter’s publication, the appellant had a separate cause of action against each of them. However that did not, in her Honour’s view, undermine the force of Mr Leopold’s contention. She observed (at [23]): “The civil wrong complained of in the present case consisted in the act of publication of the letter which, if defamatory of Mr Bracks, occasioned damage to his reputation. If there was more than one person responsible for that publication, Mr Bracks had more than one cause of action and could bring more than one proceeding, but each publisher was liable as a joint tortfeasor for the same damage. If that was the damage in respect of which judgment was entered in favour of Mr Bracks in the Denoon proceedings, then s 5(1)(b) operates so as to preclude the recovery of any additional sum.” Mr Hale submitted that s 5(1)(b) did not have the operation for which Mr Leopold contended because (primary judgment at [24]):“24. …a) … in the Denoon proceedings, Mr Bracks only sued on the words in schedule A, not on the whole of the letter published by Mr Smyth-Kirk (schedule B); b) … even if in the Denoon proceedings Mr Bracks sued on the publication by Mr Smyth-Kirk of the whole of the letter, the ‘damage’ inflicted by Mr Denoon by that publication is not the same damage as the damage inflicted by Mr Smyth-Kirk.”
Ratio Decidendi
Legal Principle Established
Mr T S Hale of Senior Counsel, who appeared with Mr J O Hmelnitsky for the appellant below and on appeal, submitted that the dismissal order was final in legal effect, thus giving the appellant an appeal as of right, because it precluded the appellant from recovering damages from the respondent for publishing the campaign letter. He argued that the basis of the dismissal order lay in the primary judge’s conclusion that the appellant should have brought any proceedings against the respondent in respect of the publication of the campaign letter in the Denoon proceedings. Thus, he contended, the dismissal order created a res judicata estoppel in the sense referred to in Port of Melbourne Authorityv Anshun Pty Ltd (No 1) [1980] HCA 41; (1980) 147 CLR 35 (at 38) (“Anshun (No 1)”)Competence of the appeal: consideration In Re Luck [2003] HCA 70; (2003) 78 ALJR 177, the High Court (McHugh ACJ, Gummow and Heydon JJ) concluded that an order refusing leave to issue a writ of summons and a statement of claim on the basis that it disclosed no cause of action was interlocutory. Their Honours explained (at [4], footnotes omitted)“As McHugh, Kirby and Callinan JJ stated in Bienstein v Bienstein, the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order.” (emphasis added) The Court referred (at [6]) to the fact that “[f]or more than a century, courts, including courts of the highest authority, have consistently held that an order staying an action on the ground that it is frivolous, vexatious or an abuse of process is an interlocutory order”. Their Honours regarded that line of authority as having been confirmed by the Privy Council’s decision in Tampion v Anderson (1973) 48 ALJR 11. Their Honours also referred (at [8]) to the High Court decisions which pre– and post–dated Tampion which were consistent with the view that an “order dismissing an action because it is frivolous, vexatious, an abuse of process or because it fails to disclose a reasonable cause of action” is interlocutory. Those decisions were Pye v Renshaw [1951] HCA 8; (1951) 84 CLR 58 (order dismissing a suit if no amendment made to statement of claim within 21 days) Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 (order refusing an extension of time in which to sue), Carr v Finance Corporation of Australia Limited [No 1] [1981] HCA 20; (1981) 147 CLR 246 (order refusing to set aside judgment obtained upon default of defendant in delivering defence) and Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 (orders made by a single Justice (a) to dismiss an application to disqualify himself from hearing application for removal, and (b) to remove particular causes pending in the Family Court into the High Court).