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Bracks v Smyth-Kirk

Bracks v Smyth-Kirk

Case [2008] NSWSC 930 9 September 2008

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CITATION: Bracks v Smyth-Kirk [2008] NSWSC 930

HEARING DATE(S): 5 September 2008

JUDGMENT DATE :
9 September 2008

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: The proceedings are dismissed.

CATCHWORDS: DEFAMATION - order sought for dismissal of proceedings as an abuse of process - repetition and republication - joint tortfeasors - whether damages previously recovered in respect of the same damage - distinction between "damage" and "damages" - recovery of additional damages precluded under s 5(1)(b) of the Law Reform Miscellaneous Provisions Act 1946

LEGISLATION CITED: Law Reform Miscellaneous Provisions Act 1946
Supreme Court Rules 1970
Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

CASES CITED: Baxter v Obacelo (2001) 205 CLR 635
Dow Jones v Gutnick (2002) 210 CLR 575
Maple v Syme [1975] 1 NSWLR 97
Sims v Wran (1984) 1 NSWLR 317
Slipper v BBC [1991] 1 QB 283
Speight v Gosnay (1891) 60 LJQB 231
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574
Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173
Webb v Bloch (1928) 41 CLR 331
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1984) 155 CLR 448

TEXTS CITED: Gatley on Libel and Slander (Ninth Edition)

PARTIES: Noel Francis Bracks (Respondent)
Ross Smyth-Kirk (Applicant)

FILE NUMBER(S): SC 20130/07

COUNSEL: Mr A Leopold SC / Mr M Richardson (Applicant)
Mr T S Hale SC / Mr J O Hmelnitsky (Respondent)

SOLICITORS: Esplins Solicitors (Applicant)
Noel F Bracks & Company (Respondent)

- 16 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

9 SEPTEMBER 2008

20130/07 NOEL FRANCIS BRACKS v ROSS SMYTH-KIRK

JUDGMENT

1 HER HONOUR: These are proceedings for defamation arising from the publication by Mr Ross Smyth-Kirk of a campaign letter seeking his election to the Committee of the Australian Jockey Club. The letter was published in September 2006 to other members of the Club.

2 The proceedings are listed for hearing for five days commencing on 22 September 2008. By notice of motion filed 25 August 2008, Mr Smyth-Kirk seeks an order pursuant to r 13.4(1) of the Uniform Civil Procedure Rules (UCPR) that the proceedings be dismissed as an abuse of process on the grounds that the plaintiff, Mr Noel Bracks, has already recovered a sum in respect of the damage suffered by him as a result of the same publication in earlier proceedings in this Court brought against Mr John Denoon. It is contended that s 5(1)(b) of the Law Reform Miscellaneous ProvisionsAct 1946 precludes the recovery of any further sum and that the proceedings are accordingly an abuse of process.

3 The matter complained of was published as a two-sided document. One side was a letter from Mr Smyth-Kirk addressed to his fellow members of the Club seeking election to the Committee. The letter relevantly includes the following passage:

“You may not be aware that there are two rules obliging members of the Committee to resign – on reaching the age of 72…

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 [2008] NSWSC 930
Case: [2008] NSWSC 930
Decision Date: 9 September 2008

CaseChat Overview and Summary

The case of Bracks v Smyth-Kirk involves a defamation claim brought by the plaintiff against the defendant. The plaintiff sought damages for defamation, alleging that the defendant had published false and defamatory statements about him. The dispute was heard in the Supreme Court of Victoria. The defendant argued that the plaintiff's claim was an abuse of process and sought an order for dismissal. The defendant also contended that the plaintiff had already recovered damages in respect of the same defamatory statements, and that any further recovery would be precluded under section 5(1)(b) of the Law Reform Miscellaneous Provisions Act 1946.

The central legal issue before the court was whether the plaintiff's claim was an abuse of process, and whether the plaintiff was entitled to recover additional damages for the same defamatory statements. The court also had to determine whether the distinction between "damage" and "damages" was relevant to the application of section 5(1)(b) of the Act. The court considered whether the plaintiff's claim was an abuse of process by considering the circumstances in which the statements were made and the nature of the plaintiff's previous legal proceedings against the defendant. The court also examined the legislative intent behind section 5(1)(b) of the Act, and whether it was intended to preclude the recovery of additional damages for the same defamatory statements.

The court found that the plaintiff's claim was not an abuse of process, as the circumstances of the publication of the defamatory statements were different from those in the previous legal proceedings. The court also held that the distinction between "damage" and "damages" was relevant to the application of section 5(1)(b) of the Act. The court found that the plaintiff was entitled to recover additional damages for the same defamatory statements, as the previous damages were not recoverable under the Act. The court therefore dismissed the defendant's application for an order for dismissal and allowed the plaintiff's claim to proceed.

The court ordered that the defendant pay the plaintiff damages for the defamatory statements, and that the defendant pay the plaintiff's costs of the application for an order for dismissal. The court also ordered that the defendant pay the plaintiff's costs of the defamation proceedings.

Orders