Harris v 718932 Pty Ltd

[2000] NSWSC 784

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 GLOBE PRESS PTY LIMITED) AND 3 OTHERS

JUDGMENT

General Outline

1    The plaintiff, Mr Arthur Harris, by action commenced on 30 December 1996, sued Mr Kevin Perkins, Globe Press Pty Limited - now 718932 Pty Limited (Globe); Capricorn Link Australia Pty Limited (Capricorn); William Stanley Waterhouse and Robert Waterhouse for defamation based upon imputations claimed to be carried by certain material contained in the first and second republications of a book "The Gambling Man". He had brought an earlier action No. 10735 of 1991 (the first action) in defamation against different defendants (other than Perkins) based on the first publication of that book. In this second action the claim against Perkins has now been discontinued.

2    By separate notices of motion Globe, Capricorn and the Waterhouse defendants seek orders "that the plaintiff's claim as defined in his Second further amended Statement of Claim (filed 24 February 2000) be struck out on the grounds it is an abuse of the processes of the court".

Such a claim confuses the relief available under Pt13 r5 and Pt15 r26 of the Supreme Court Rules . All parties have agreed that I should deal with the motion under both rules.

History

3    The book was first published and distributed in November 1990. It was reprinted in February 1991 and again in November 1992. The statement of claim in the first action named ten defendants. Perkins was joined as first defendant, it being claimed the book was written by him. The action was brought on the original publication in 1990. Numerous imputations were pleaded. McPhersons Limited was joined as third defendant and sued as the printer. It joined all other defendants as cross-defendants to a cross-claim and also joined William Waterhouse as tenth cross-defendant claiming that he said to Perkins words substantially the same as the matter complained of, that he knew that Perkins was a journalist and an author collecting information for a book about him, William Waterhouse, and that either the republication of the words was authorised by him or its republication was the natural and probable result of his publication of the material to Perkins.

4    The claim against McPhersons Limited was settled during the hearing which did not take place until 1999. It is not clear from the material before me whether judgment was entered for McPhersons, but probably it was. That presumably would have brought the cross-claims to an end, but whether that was done by judgment or discontinuance I do not know, and it does not matter.

5    The first action went to trial in early 1999 on a second further amended statement of claim filed in April 1992 on pleaded imputations as follows:

(a) That the Plaintiff conspired with various persons including a known criminal, George Freeman and Freeman's associates to procure the unjust charging and conviction of Robert William Waterhouse and William Stanley Waterhouse on criminal charges relating to the Fine Cotton ring in.
(b) That the Plaintiff conspired with George Freeman and Freeman's criminal associates in an effort to damage Perkins.
(c) That the Plaintiff conspired to pervert the course of justice.
(d) That the Plaintiff in 1974 at Warwick Farm engaged in an attempt to dishonestly obtain for himself rewards from the doping of racehorses by a person known as the "Fence Jumper".
(e) That the Plaintiff so conducted himself that he ought to have been warned off racetracks.
(f) That the Plaintiff supplied the Australian Jockey Club, or its employees with false information harmful to the Waterhouses, knowing the information to be false.
(g) That the Plaintiff published false information to Perkins knowing the information to be false.
(h) That the Plaintiff was a homosexual.
(i) That the Plaintiff sought to engage in sexual acts with male minors.
(j) That the Plaintiff was a defaulter on his gambling debts.
(k) That the Plaintiff failed to honour his contractual obligations to Robert Waterhouse.
(l) That the Plaintiff conspired with Haitana to falsely allege that Perkins had offered Haitana large sums of money so that Haitana would give false evidence in proceedings relating to the Fine Cotton Affair.

6    By the time the matter went to the jury the action was only brought against Perkins and Gordon & Gotch Limited, which company was the printer. The jury found:

A. That all pleaded imputations were carried.

B. That all but (h) were defamatory of the plaintiff.

C. That imputations (f) and (g) were substantially true.

D. That the following (contextual) imputations were carried by the material complained of:

(i) The plaintiff is a cheat;
(ii) The plaintiff is a slanderer and scandal monger;
(iii) The plaintiff is a self confessed liar.


And that all such imputations were defamatory.

E. That the contextual imputations were substantially true.

F. By direction, that the defendants had not established imputations (a), (b), (c), (d), (i), (j), (k) and (l) were substantially true.

G. That the contextual imputation defence was not made out.

H. For compensatory damages of $5,000 and aggravated damages against Perkins of $5,000 and against Gordon & Gotch Limited of $10,000.

7    The file in the second action (this action) has on it the original statement of claim filed on 30 June 1996; an amended statement of claim which was apparently filed in July 1997; a further amended statement of claim filed on 12 November 1998; and a second further amended statement of claim filed on 24 February 2000 (second further amended statement of claim). The pleaded imputations in each of the first, second and third documents are the same, being those that went to the jury in the first action, which I have set out. In the first and second documents it was alleged that Perkins was author of the book and caused it to undergo the reprints; that Globe printed the first reprint and that Capricorn distributed the first and second reprints; that the Waterhouse defendants said or wrote for Perkins words substantially the same as those in the book, that they thereby made the original publication in circumstances whereby they authorised its republication or that its republication was an actual result of the publication. The matter complained of has remained the same throughout.

8 On 27 November 1997 Levine J gave leave to discontinue against Perkins. I was told that this came about because leave had not been given pursuant to s9(3) of the Defamation Act 1974. It seems that an application was then made by the Waterhouse defendants to strike out the amended statement of claim pursuant to Pt 15 r26(1)(b) of the Rules. Levine J made orders striking out certain paragraphs, for the removal of Perkins as a defendant, and for the provision of further particulars and he gave leave to file a further amended statement of claim.

9    The further amended statement of claim pursuant to this leave was filed on 12 November 1998. The document alleges that the book was "putatively authored by Perkins"; that Perkins was the servant or agent of the Waterhouses in his acts of authorship and publication and the reprinting the book; that the Waterhouses supplied material for the book and wrote as much of it as they wished; that they maintained control over Perkins; and that they approved and authorised the contents and maintained editorial control over the first and second reprints and thereby published or republished the first and second reprints.

10    The solicitor for the Waterhouse defendants sought particulars in December 1998. The reply is dated 14 February 2000. In the meantime Mr Harris seems to have lost his legal representation, the action going into limbo until listed for a call up of dormant matters on 8 December 1999 when the plaintiff informed the court that he wished to proceed. He subsequently applied for leave to file a second further amended statement of claim and obtained leave from Simpson J on 18 February 2000 "subject to the rights of the defendants to argue any matters arising from the document in its amended form".

11    This second further amended statement of claim made the same allegations against the Waterhouse defendants as before and added the claim that they approved and authorised the publication of the book and the first and second reprints. More importantly however, the imputations, which up to that time had been in the same form as those which went to the jury in the first action, have been amended. The new imputations are as follows:

(a) That the Plaintiff conspired with various persons including a known criminal, George Freeman and Freeman's associates to procure the unjust charging and conviction of Robert William Waterhouse and William Stanley Waterhouse on criminal charges relating to the Fine Cotton ring in.
(b) That the Plaintiff conspired with a known criminal George Freeman and Freeman's criminal associates in an effort to damage Perkins.
(c) That the Plaintiff conspired with police, criminals and a politician to pervert the course of justice by pressuring Ian Murray to give false sworn testimony during Committal proceedings in June 1986.
(d) That the Plaintiff intended to pervert the course of justice at Committal proceedings involving Robert William Waterhouse in June 1986 by conspiring with corrupt cops to bribe the trainer of Fine Cotton, Hayden Haitana, to make false accusations under oath against Perkins.
(f) That the Plaintiff attempted to pervert the course of justice by offering to lend Robert North, who was convicted and sentenced for playing a leading role in the Fine Cotton ring in, money if he would knowingly make false accusations against Robert Waterhouse and William Waterhouse.
(g) That the Plaintiff from 1988 until 1989 maliciously and unjustly pressured Det Sgt Ken McKnight to have Robert William Waterhouse charged with perjury over his evidence before the Racing Appeals Tribunal in 1984.
(h) * That the Plaintiff in 1984 during a AJC inquiry in the Fine Cotton scandal supplied the Australian Jockey Club or its employees with false information harmful to the Waterhouses, knowing the information to be false.
(i)* That the Plaintiff in 1986 published information harmful to Perkins knowing that that information was false.
(h)(2) That the Plaintiff is a scandal monger because he wrote anonymous articles for the scurrilous circular known as "the Muckrake".
(i)(2) That the Plaintiff because of his contribution to a scurrilous circular known as "The Muckrake" was of such character that the Australian Jockey Club should give consideration to having him warned off all racetracks.
(j) That the Plaintiff conspired with Hayden Haitana to have Haitana file a false statutory declaration in the Canberra Supreme Court in February 1987.
(k) That the Plaintiff was so sexually depraved that he would regularly attend video nights at which lewd homosexual videos were shown.
(l) That the Plaintiff sought to engage in sexual acts with male minors.
(m) That the Plaintiff was a defaulter on his gambling debts.
(n) That the Plaintiff failed to honour his contractual obligations when providing an assessment of the odds of horses in various races to Robert Waterhouse.
(o) That the Plaintiff in 1974 at Warwick Farm racetrack had prior knowledge of the criminal doping of two racehorses because he was an associate of a criminal known as "The Fence Jumper" who doped racehorses.
(p) That the Plaintiff behaved so idiotically in his antics on Sydney racetracks as to be the object of general ridicule.

12    It would be seen from this that imputations appear twice under the letters (h) and (i) and I have marked the first of those with an asterisk. It will also be seen that the new imputations (a), (b), (h)*, (i)*, (l), (m), (n) and (o) are in form identical with or nearly identical with those previously pleaded in the earlier paragraphs as respectively (a), (b), (f), (g), (i), (j), (k) and (d). New imputations (c), (d) and (e) may be a refinement of the earlier imputation (c). Imputations (h)(2) and (i)(2) together with (j), (k) and (p) seem to be new.

13    It was accepted by all parties that when Simpson J reserved the rights of the defendants to argue any matters arising from this new document its filing made no difference to this. Thus it was accepted by counsel for the plaintiff that the defendants were at liberty to seek an order that the amendments operated only from their date of filing rather than from the date of filing the original statement of claim which would otherwise be the position. This is of course significant as the new imputations plead new causes of action which would be barred by the provisions of the Limitation Act 1969 if pleaded. It was accepted for this purpose that the defendants would plead a limitation defence. It was agreed that I would deal with the claim of the defendants for an order pursuant to Pt 20 r4(6) that the amendments operate from the date of filing the amended document, this having a bearing on the abuse of process claim, but that other complaints (if any) were not before me, although Mr Evatt did make some complaint about the particulars relating to "approved" and "authorisation". That can be left on one side. The motions before me are for orders for dismissal or striking out on the basis of abuse of process.

Arguments

14    The arguments of counsel for the various applicants did overlap, but it is I think convenient to set out the grounds relied upon. Mr Evatt, counsel for the Waterhouse defendants, argued that the action was an abuse of process because:

1. It was brought on the same material and publications which went to the jury in the first action, so that it is a claim for the same damage.

2. If this is correct, then the defendants would have been joint tortfeasors and there cannot be double recovery.

3. The first action was brought against Perkins as author and publisher. The second action claims that he was putative author and servant or agent of the Waterhouses and such contrary claim is an abuse.

4. The plaintiff is estopped because the present claims on the republications could and ought to have been brought by amendment in the first action.

15    Mr McClintock, counsel for the second defendant printer, put forward eight reasons as to why the action was an abuse. He accepted that in some cases it was necessary to look at these points together and that on their own some of them would not constitute an abuse, but on the other hand some of them would do so on their own.

1. The delay in commencement of action on a cause of action on the first republication which arose in 1991 and the second in February 1992, coupled with the delay in prosecution of the proceedings which were only revived through being called up in a dormant actions call-over list.

2. That as at 30 December 1996, Harris could have joined Globe to the 1991 proceedings by amendment, or could subsequently have sought consolidation.

3. That the two actions contained wilfully inconsistent allegations amounting to approbation and reprobation.

4. That there is a prospect of inconsistent findings of fact on the imputations and on the defences.

5. That there will be a re-litigation of issues already determined.

6. That the plaintiff is using the earlier proceedings to obtain an illegitimate benefit in the second proceedings.

7. That the consequence of the separate action is that there is a certainty that the time of the court and a jury would be taken up for a further eight weeks considering the same book.

8. The failure to bring proceedings on for trial together.

16    Mr Smark, counsel for the distributor, adopted the arguments of Mr McClintock. Counsel for all defendants argued that an order should be made that the amendments to the imputations brought forward by the second further amended statement of claim should date only from the date of filing of that document. All pointed to the difficulty of a jury determining damages and separating these from damages on the first publication.

Claim of re-litigation of same cause of action

17    Mr Evatt in particular claimed that the verdict of the jury for damages was based on all publications and all damage from 1990 to 1999. He pointed to some parts of plaintiff's counsel's address to the jury to support this. This argument must fail. It is really a claim of res judicata which requires the record to be in evidence. The first action was founded on the original publication. Re-publication gives rise to a new cause of action. The summing up of the trial judge is not in evidence before me, nor are the pleadings, apart from the statement of claim, nor is the judgment. There is no possible basis which would allow me to find that the case did not proceed on the pleaded claim. At least to some extent the passages relied upon by Mr Evatt would have been relevant to the claim for aggravated damages. This ground fails. If it fails then the claim as to the new defendants being joint tortfeasors, and that they can be no double recovery, must also fail.

Claim for estoppel

18 The argument was that the action should be dismissed as an abuse of process as it was doomed to fail. This is a Pt13 r5 point. The basis for this claim is that the defendants would plead an estoppel on the principle now generally called in Australia "Anshun estoppel": Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589, being the extended estoppel based upon the judgment in Henderson v Henderson (1843) 3 Hare 100, the relevant passage of which is so well known it is not necessary to set it out. I have expressed the view before that in cases where a defence of estoppel is said to be relied upon, then the preferable course is to plead the defence and to have that part of the action tried as a preliminary issue on the basis that if successful the action would end. That was the view expressed by Northrop and Lee JJ in Effem Foods Pty Limited v Trawl Industries of Australia Pty Limited (1993) 43 FCR 510 at 519 and by me in Maronis Holdings Ltd & Anor v Nippon Credit Australia Ltd (unreported, Windeyer J, 6 October 1994): see also Cross on Evidence 6th Australian Edition paragraph 5120. Except in the most obvious cases it is not easy to dispose of a claim of a defence of estoppel not specifically pleaded. While it is an abuse of process to bring an action which is doomed to fail it is not possible to strike out a claim on that basis if there is a serious question to be tried. Thus it is possible that an application for dismissal may fail but the issue be raised again in the substantive defence. However, the argument was quite strongly put by Mr Evatt and supported by Mr McClintock and must be dealt with.

19 The cause of action, at least on the second reprint had not arisen when the first action was commenced. Nevertheless there is no doubt that the claim on the two reprints could have been included by amendment in the first action even though that would have involved the joining of new defendants. The combined operation of Pt 20 r1(3A) and Pt 8 r8 of the Supreme Court Rules would have allowed this; it was not suggested otherwise.

20    Generally speaking a successful plea of estoppel requires an identity of parties or their privies. Mr Evatt referred me to two recent decisions of the Court of Appeal in England; namely, MCC Proceeds Inc. v Lehman Bros International (Europe) 4 All ER 675 and Morris v Wentworth-Stanley [1999] QB 1004. In the first of these cases all three Lords Justice of Appeal upheld the decision of the trial judge that the plaintiff's claim for conversion was doomed to fail, the plaintiff having neither actual possession nor legal right to possession of the shares in question at the time of the claimed conversion. That was sufficient to determine the question on appeal. However, the judges went on to consider a matter raised by the respondent as a ground of contention, namely that the substantial issue had been decided in circumstances which precluded its being re-litigated. Two of the Lords Justice of appeal, namely Mummery and Pill LJJ, held that the Henderson principle can apply in favour of a person not a party to the earlier action, and upheld this argument on the grounds of res judicata and abuse of process, while Hobhouse LJ rejected it. MCC Proceeds Inc was the plaintiff in both actions, but in the first action the defendant was Shearson Lehman Bros Holdings plc (SL) whereas in the second action the defendant was Lehman Bros Limited of which SL was a subsidiary. In the first action the plaintiff claimed title to shares held by SL and failed, because the defendant was a bona fide purchaser of the shares without notice of the plaintiff's claim. The second action was for conversion of share certificates by Lehman Brothers. In short, the majority judges held that there was a sufficient overlap of issues to bring the matter, so far as was relevant, within the principles of Henderson v Henderson. It is not necessary to go into the matter in detail. It was decided that it was necessary for the trial judge in the first action to adjudicate upon the rights of the defendant in the second action and that a claim for conversion had not been pressed, albeit that the claim for conversion was never made against the defendant in the second action. The dissenting judge, Hobhouse LJ, while saying that the causes of action could have been joined, said that it was understandable that no application was made for joinder and in any event it might not have succeeded. Whatever should be drawn from this case, it is I think, perfectly clear that in Australia where the Anshun doctrine has been treated conservatively, it would be impossible to hold that it was unreasonable not to bring new causes of action relating to new publications against new defendants in the original proceedings, at least without having the claimed estoppels properly pleaded so that the facts could be considered in great detail. Morris v Wentworth-Stanley was a simpler case. This action was really determined on the basis of an accord and satisfaction and once again the decision based on the principle in Henderson v Henderson was not necessary. The facts were that two actions had been brought by a contractor against the partners in a farming partnership. Those actions were consolidated. One of the partners died and when the plaintiff found that out he discontinued his claims against the deceased partner and Mrs Wentworth-Stanley, the wife of that deceased partner, and proceeded solely against the third partner "O". The consolidated actions were settled for an agreed sum payable by "O" which "O" failed to pay. Thereafter the plaintiff accepted a lump sum from "O's" son in final satisfaction of the judgment. The plaintiff then brought proceedings against Mrs Wentworth-Stanley for the same relief but reduced by the amount of $45,000. The Divisional court held that irrespective of its decision on accord and satisfaction the prosecution of the fresh proceedings against a defendant against whom the original proceedings had been discontinued was an abuse of process. There was some identity of parties in that action and in any event the cause of action was based on the original debt. That is entirely different from the position in the instant action where the cause of action is based upon the publication of the material containing the alleged imputations. Leaving aside the more general matter of abuse of process to which I will come, I would not be prepared to hold that the plaintiff was estopped from bringing this action by reason of his failure to incorporate the claim based on the republications by joining additional defendants to the first action. It would certainly not be possible to hold that that defence, if pleaded would be bound to succeed. It is therefore not possible to hold that the second claim, the subject of this action, would be doomed to fail. It is my clear view that as the law stands in Australia Anshun estoppel requires claims between the same parties or their privies. The statement of Lord Kilbrandon in Yat Tung Investment Co Ltd v Dao Hong Kong Bank Ltd [1975] AC 581 has not been accepted by the High Court of Australia.

Abuse of process

21    It is now possible to deal with the balance of the claims under this heading. It is, I think, proper to point out that the argument I have just considered is often discussed under the abuse of process head. This is not the occasion to write another essay on the topic. It may be that the Henderson principle applies or a separate claim of abuse of process if the additional claim arises out of substantially the same facts; see article by Handley JA "Anshun Today" (1997) 71 ALJ 934 at 938, but here a different publication by different defendants is not a cause of action arising on substantially the same facts. The decisions in Thomson v Lambert (1938) 2 DLR 545 and Macdougall v Knight (1890) 25 QBD 1 were different involving: in one case different defendants and the one edition; and in the other different defamations (imputations) from the one publication. Thus I do not consider the second action an abuse nor do I consider the fact that there could have been consolidation or amendment of particular significance or that the second action could be thought an abuse because opportunity was not taken to seek amendment. It is by no means certain that an order would have been made in 1997 allowing the addition of the new causes of action against different defendants. Much more evidence of the course of proceedings in the first action would be necessary before any conclusion would be possible about this.

22 I should also say at the commencement of this part of the judgment that I do not consider delay in prosecution of the claim is of relevance; the defendants took no steps to bring it on. Neither do I consider the argument that the new jury will have an impossible task has real significance. The jury for this second action will have a difficult task, but not an impossible one after receiving appropriate evidence and directions pursuant to s48 of the Defamation Act 1974.

23    The real question under this heading is whether the claimed abuse said to arise from the making of wilfully inconsistent allegations, the prospect of inconsistent findings of fact, and the re-litigation of issues already determined, make the proceedings on the current pleadings an abuse of process. I turn to these matters.

The allegedly inconsistent claims as to authorship.

24    There is no dispute the first action went to the jury on the claim that Perkins was author of the work. In the second action it is alleged that the book was "putatively authored" by Perkins, who was the servant or agent of the Waterhouse defendants in relating to his authorship; that those defendants wrote so much of the book as they wished, maintained control over Perkins insofar as he wrote it, and approved and authorised the entire content of the book.

Mr Evatt complained that the Waterhouses had been elevated from providers of information to authors, between the statement of claim and the further amended statement of claim. That does not seem to me of itself to be of great significance. The further amended statement of claim was filed on 12 November 1998. The third and fourth defendants have never filed a defence in the action. The plaintiff's claim may have been recast but not as a result of the judgment in the first action, which was not given until 1999. Some attention was given to the particulars furnished in respect of the further amended statement of claim and the second further amended statement of claim which differ a little and are inconsistent with the pleading. I do not consider attention should be given to this. Particulars furnished by letter cannot amend the pleading and cannot be inconsistent with it, although they may be used to evidence abuse. The current pleading alleges that Perkins was the putative author of the book. That means he was the "supposed" or "reputed" author as opposed to "actual" author. There can be no doubt that this is inconsistent with the case that Mr Tobin put to the jury in the first action, which was that Perkins wrote the book. What is now being claimed by Mr Harris is that there was joint authorship of the book, the Waterhouse defendants "writing as much of the book as they wished". This means not only that it is not stated who wrote the material complained of but also that paragraph 4(a) is inconsistent with 7 and both are inconsistent with the claim in the first action.

25    Mr Harris has obtained judgment against Perkins on the basis Perkins was author of the book. He now seeks damages on a basis inconsistent with that. This may not fall within the prohibition against approbation and reprobation because the present defendants have not proceeded on the basis of the assumption by Harris made clear in the first action. Nevertheless it is an abuse to make wilfully inconsistent claims without cause. Nothing has changed since the first publication; there is no suggestion that the plaintiff proceeded on a basis now found to be incorrect; in fact having pleaded the "putative" authorship he proceeded in his claim against Perkins as author and succeeded. As I seem to keep complaining parties claiming an abuse ought not to leave the court without evidence of the prior record; I do not know whether or not Perkins admitted authorship. However, on the basis of counsel's address to the jury I can properly find that the claim was based on that fact, whether admitted or not. The issue of authorship has been determined; it is an abuse or unconscionable to raise a contrary claim; see VACC Insurance Ltd v BP Australia Ltd (1999) 47 NSWLR 716 at 725; it would bring justice into disrepute. None of this gives cause for dismissal. An action can be pleaded against the Waterhouse defendants without an inconsistent claim as to authorship. Paragraphs 4(a) and 7 of the second further amended statement of claim should be struck out. As a result some of the particulars must go but I will not make an order for that. It is only the Waterhouse defendants who are concerned with this particular issue.

Prospect of inconsistent findings and re-litigation of determined issues

26    The next question is whether there is an abuse of process because there is a prospect of inconsistent findings. The jury in the first action found imputations (f) and (g) were true. Those imputations are repeated (with a few words, which as I understand it do no more than indicate the time of the conduct referred to in the material complained of) in (h)* and (i)* of the second further amended statement of claim. In his particulars in the second action of his claim for aggravated damages the plaintiff says the imputations (namely all of them) are false. The fact that the defendants are different does not alter the fact that the plaintiff is pleading and thus seeking a finding inconsistent with the earlier finding. That does not mean that it would be improper to plead the imputations without pleading that they were false and then arguing that there was no public interest or occasion of qualified privilege. However at this stage that position has not arisen. It may be that the question of public interest was determined by the judge at the first hearing, in which case there would be nothing remaining to be litigated on those repeated imputations found to be true. I am without the record. It is also likely that the defendants will rely upon the same contextual imputations as before and in addition will seek to justify at least some of the imputations not justified in the first hearing, because - so I was informed - the trial judge refused to let the defendant go to the jury on those matters because they had not complied with procedural directions. While this latter matter is not significant there is a possibility of inconsistent findings of fact sought by the plaintiff in the face of findings already made against him. This is really the same complaint as that of re-litigation of issues already determined, so as to be an abuse.

27    It is an abuse of process to raise for re-determination an issue already determined in other proceedings against the party raising it. It is not necessary that the parties be the same; what is necessary that the litigant is propounding an issue already lost by that litigant in other proceedings. Reichel v Bishop of Oxford (1889) 14 AppCas 259 is the case usually cited as the foundation for this principle and it has been approved in Hunter v Chief Constable of West Midlands Police [1982] AC 529. There is a helpful discussion of these cases and others by Hunt CJ at CL in Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 affirming the Reichel principle but indicating that the issue must have been properly raised, argued and determined in earlier proceedings. The evidence before me on this is rather scanty but in view of the length of the trial and the jury findings, I accept that the issue of truth on the imputations justified was clearly raised, argued and determined. It is an abuse for the plaintiff to raise it again. Such a claim should not be allowed. It is however, a relatively minor part of the proceedings. There is no reason, at least looking at that ground alone to dismiss the action for abuse. The present defendants are not bound by any findings on any issues. All defences are open to them. I would strike out the statement of claim so far as it alleges that the imputations (f) and (g) are false. I appreciate the allegation is made by way of particulars of aggravated damages - nevertheless the particular must be struck out. The proceedings should not be dismissed for this.

28    I do not understand the argument that the plaintiff is using the earlier proceedings to obtain an illegitimate benefit in the second proceedings to raise any matters I have not dealt with. There was discussion about the second proceedings being an insurance against failure or unsatisfactory result in the first, but there is no evidence to support that claim and it is not clear such action would be improper. Finally I should say it is not an abuse to bring forward another jury action almost certain to last some weeks unless there is an estoppel or it is an abuse of process not to have run both actions together.

Date of operation of amendment.

29 There was no evidence that the defendants were prejudiced apart from the fact that if the amendment operated as from the date of commencement of the action, no limitation defence would be available. It is clear that the new imputations fall within Pt 20 r4(5) of the Supreme Court Rules. The material complained of is the same. I consider that the ordinary rules should apply. My view would have been different had an estoppel on the Anshun principle been available or if the argument of Mr Evatt had prevailed, namely that the plaintiff had already recovered damages spread over all publications; or if the proceedings on the original imputations had been an abuse of process.

Costs

30    The defendants/applicants on the motion claimed far reaching relief over a hearing lasting nearly two days. Their intention was to bring the action to an end. In that they have failed. None sought that parts of the document attacked should be struck out; all sought dismissal of the proceedings or striking out of the whole document. In the long run some slight relief will be obtained but not that sought. In other words the order I make will be made under paragraph 2 of the motions for "further or other orders deemed necessary". As no argument was addressed to this no costs should go with it.

Orders

31    Order the claims in paragraph 1 of the notices of motion of the second defendant filed 5 April 2000, the third defendant filed 19 July 2000 and the fourth and fifth defendants filed 3 April 2000 be dismissed.

32 Pursuant to paragraph 2 of these motions and Pt15 r26 of the Rules order that paragraphs 4(a) and 7 of the second further amended statement of claim and particular (b) of the particulars of aggravated damages be struck out.

33    Order the applicants to pay the respondent's costs of the notices of motion.

34    Give leave to the plaintiff to file a third further amended statement of claim within fourteen days.

35    Exhibits to be returned.

Last Modified: 09/26/2000