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Harris v 718932 Pty Ltd

Harris v 718932 Pty Ltd

Case [2000] NSWSC 784 10 August 2000

Amendment of Pleadings

Defamation Law

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CITATION: Harris v 718932 Pty Limited [2000] NSWSC 784

CURRENT JURISDICTION: Common Law Division
Defamation List

FILE NUMBER(S): SC 21479 of 1996

HEARING DATE(S): 18 and 19 July 2000

JUDGMENT DATE: 10 August 2000

PARTIES :

Arthur Harris (Plaintiff)
718932 Pty Limited (formerly Globe Press Pty Limited) (Second Defendant)
Capricorn Link (Australia) Pty Limited (Third Defendant)
William Stanley Waterhouse (Fourth Defendant)
Robert Waterhouse (Fifth Defendant)

JUDGMENT OF: Windeyer J at 1

COUNSEL : Mr T Tobin QC with him Mr D R Campbell (Plaintiff/Respondent)
Mr B McClintock SC (Second Defendant/Applicant)
Mr K Smark (Third Defendant/Applicant)
Mr C A Evatt with him Ms M Fraser (Fourth & Fifth Defendants/Applicants)

SOLICITORS: Verekers (Plaintiff/Respondent)
Bush Burke & Company (Second Defendant/Applicant)
Gye Associates (Third Defendant/Applicant)
Ramrakha Jenkins (Fourth & Fifth Defendants/Applicants)

CATCHWORDS: DEFAMATION - where plaintiff recovered in litigation on first publication and seeks to recover for second and third publications against different defendants including different printer and distributor - PRACTICE AND PROCEDURE - abuse of process - application for striking out of proceedings for defamation on grounds of abuse of process - whether re-litigation of same cause of action - Anshun estoppel - whether the previous action should have been amended to add claims based on reprints or to add additional defendants - where claims by plaintiff inconsistent with claims in previous proceedings - whether prospect of inconsistent findings - Pt13 r5, Pt15r26 Supreme Court Rules - PRACTICE AND PROCEDURE - estoppel - whether a defence of estoppel should be pleaded and tried separately rather than bring motion for dismissal as abuse of process - PRACTICE AND PROCEDURE - defamation - amendment of imputations - date of operation of amendment - Pt20 r4(5) Supreme Court Rules

LEGISLATION CITED: Defamation Act s9(3), s48
Limitation Act
Supreme Court Rules Pt8 r8, Pt13 r5, Pt15 r26, Pt 15 r26(1)(b), Pt20 r1(3A), Pt20 r4(5) Pt20 r4(6)
Handley JA "Anshun Today" (1997) 71 ALJ 934 at 938
Cross on Evidence 6th Australian Edition paragraph 5120

CASES CITED: Effem Foods Pty Limited v Trawl Industries of Australia Pty Limited (1993) 43 FCR 510
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
Henderson v Henderson (1843) 3 Hare 100
Hunter v Chief Constable of West Midlands Police [1982] AC 529
Macdougall v Knight (1890) 25 QBD 1
Maronis Holdings Ltd & Anor v Nippon Credit Australia Ltd (unreported Windeyer J 6 October 1994)
MCC Proceeds Inc. v Lehman Bros International (Europe) [1998] 4 All ER 675
Morris v Wentworth-Stanley [1999] QB 1004
Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589
Reichel v Bishop of Oxford (1889) 14 AppCas 259
Thomson v Lambert (1938) 2 DLR 545
VACC Insurance Ltd v BP Australia Ltd (1999) 47 NSWLR 716
Yat Tung Investment Co Ltd v Dao Hong Kong Bank Ltd [1975] AC 581

DECISION: See paragraphs 31 to 34

15
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST
WINDEYER J
THURSDAY 10 AUGUST 2000
21479/96 ARTHUR HARRIS v 718932 PTY LIMITED (formerly…

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 Harris v 718932 Pty Ltd

Details

AGLC: Harris v 718932 Pty Ltd [2000] NSWSC 784
Case: [2000] NSWSC 784
Decision Date: 10 August 2000

CaseChat Overview and Summary

In the case of Harris v 718932 Pty Ltd, the plaintiff, Harris, sought damages for defamation against multiple defendants, including different printers and distributors, for the republication of allegedly defamatory material. The previous litigation involved a defamation claim against another defendant for the initial publication of the defamatory material, where Harris was successful. The current dispute involves the plaintiff seeking to recover damages for the second and third publications of the same defamatory material. The defendants argued for the dismissal of the proceedings on the grounds of abuse of process and Anshun estoppel, asserting that the plaintiff had re-litigated the same cause of action by not adding the new defendants in the previous action, leading to a potential for inconsistent findings.

The court examined whether the plaintiff's claims were an abuse of process and whether the previous action should have been amended to include the additional defendants. It was noted that the claims in the current proceedings were inconsistent with those in the previous action, raising the prospect of inconsistent findings. The court also considered whether a defence of estoppel should be pleaded and tried separately rather than dismissed as an abuse of process. Additionally, the court addressed the procedural issue of amending the imputations and the date of operation of such amendments under Pt20 r4(5) of the Supreme Court Rules.

The court determined that the plaintiff's claims for the subsequent publications amounted to an abuse of process and were precluded by Anshun estoppel. It was held that the plaintiff should have amended the previous action to include the additional defendants and the claims based on the reprints. The court found that the prospect of inconsistent findings warranted the dismissal of the current proceedings. Consequently, the court granted the defendants' application to strike out the proceedings. The court also ruled that the defence of estoppel should be pleaded and tried separately, rather than dismissed as an abuse of process.

Orders