Harris v Perkins
[2001] NSWSC 258
•10 April 2001
CITATION: Harris v Perkins [2001] NSWSC 258 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S): SC 21479/96 HEARING DATE(S): 15/3/01 JUDGMENT DATE:
10 April 2001PARTIES :
Arthur Harris (Plaintiff)
Kevin Perkins (First Defendant)
718932 Pty Ltd (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: Newman AJ at 1
COUNSEL : Mr D Campbell (Plaintiff)
Mr B McClintock (Second Defendant)
Mr C A Evatt (Fourth and Fifth Defendants)SOLICITORS: Verekers Solicitors (Plaintiff)
Ramrakha Jenkins Solicitors (Defendants)CATCHWORDS: Defamation - Interlocutory Judgment - Publication of Book LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946
Limitation Act 1969CASES CITED: Baxter v Obacelo Pty Limited (2000) 48 NSWLR 522
Brinsmead v Harrison (1872) LR7CP 584
Dillingham Constructions Pty Limited v Steel Mains Pty Limited (1975) 49 ALJR 233
Duke of Brunswick v Harmer (1849) 14 QB 185
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
McLean v David Syme & Co Limited (1970) 72 SR (NSW) 513
The Koursk [1924] P 140
Toomey v Mirror Newspapers Limited (1985) 1 NSWLR 173
XL Petroleum (NSW) Pty Limited v Caltex Oil (Australia) Pty Limited (1985) 155 CLR 448DECISION: See Paragraphs 30, 31
1 HIS HONOUR: This is an interlocutory application in a defamation action brought by the plaintiff against a number of defendants. The fourth defendant, William Stanley Waterhouse (“WSW”), and the fifth defendant, Robert William Waterhouse (“RWW”), seek a variety of orders. The relief sought by the fourth and fifth defendants, in which they are joined by the second defendant, 718932 Pty Limited, ranges from summary dismissal to relief under the Limitation Act, 1969, orders in respect of particulars and for a declaration that, pursuant to s 5(1)(b) of the Law Reform (Miscellaneous Provisions) Act, 1946, the proceedings are not maintainable.
2 Not only does the plaintiff seek to have the defendants’ various applications for relief dismissed, but he seeks an order that the fourth and fifth defendants give verified discovery within 28 days and that, thereafter, the plaintiff be permitted to administer interrogatories to each of the fourth and fifth defendants within a further 28 days.
3 These proceedings have their genesis in the publication of a book entitled “The Gambling Man” which was published and distributed first on 23 November 1990. The book proclaims that its author is Kevin Perkins, who at one stage was the first defendant in these present proceedings. The book was reprinted on 5 February 1991. No change was made to the text in that reprint. A further reprint took place in November 1992. Again, there was no textual change in that final reprint from that which was originally published in November 1990.
4 The plaintiff issued a Statement of Claim in proceedings 10735 of 1991 on 15 February 1991 claiming damages in defamation against Kevin Perkins, who was described in that Statement of Claim as having been both the author of the book and having written it, McPhersons Limited (“McPhersons”), who printed the book, and Gordon and Gotch Limited (“Gordon and Gotch”), who were the distributors. Other nominated defendants in that action included booksellers. The fourth and fifth defendants in these proceedings were not originally nominated by the plaintiff as defendants in that action. However, McPhersons issued a cross-claim against, not only other defendants in the action then brought by the plaintiff, but also against the fourth defendant here, WSW, as the tenth cross-defendant. At no time did the plaintiff seek to add WSW or, for that matter, RWW as defendants in the claim he then brought. In the event, following settlement of the cross-claim brought by McPhersons, the cross-claim brought by McPhersons against WSW was discontinued.
5 Prior to the hearing of the action commenced by the Statement of Claim in proceedings 10735 of 1991, the plaintiff issued the first Statement of Claim in this matter. Initially, that Statement of Claim brought in Kevin Perkins, the present fourth and fifth defendants, WSW and RWW, and also Globe Press Pty Limited (now known as 718932 Pty Limited) and Capricorn Link (Australia) Pty Limited, the latter being the printers of the last two reprints. That Statement of Claim was filed on 30 December 1996.
6 Prior to the disposal of the action commenced by the Statement of Claim in proceedings 10735 of 1991, the plaintiff discontinued his claim in the present proceedings against Kevin Perkins, having obtained leave from Levine J so to do on 28 November 1997.
7 The trial of the action commenced by the Statement of Claim in proceedings 10735 of 1991 commenced before Ireland J and a jury on 1 February 1999. On 24 March 1999, the jury found that certain of the imputations brought by the plaintiff were established and awarded the plaintiff a sum total of $20,000 in damages. That sum of $20,000 was made up as follows:-
- (a) $5,000 compensatory damage against Kevin Perkins and Gordon and Gotch;
(b) aggravated damages of $5,000 against Kevin Perkins; and
(c) aggravated damages of $10,000 against Gordon and Gotch.
8 On 18 February 2000, Simpson J granted leave to the plaintiff to file a Second Further Amended Statement of Claim in these proceedings, subject to the rights of the defendants to make objections. That Second Further Amended Statement of Claim was filed on 24 February 2000. In the first Statement of Claim issued in these proceedings, the plaintiff pleaded twelve imputations which were identical to those which had been pleaded in proceedings 10735 of 1991. However, in the Second Further Amended Statement of Claim in these proceedings, no less than seventeen imputations, that is five more than in the original proceedings, were pleaded by the plaintiff. Two imputations, which the jury had found to be true in the first proceedings, were not included amongst the imputations pleaded in the Second Further Amended Statement of Claim.
9 Furthermore, in the first Statement of Claim issued by the plaintiff in these proceedings, he, as he had done so in proceedings 10735 of 1991, had nominated Kevin Perkins as the author of the offending work. In his First Amended Statement of Claim in these proceedings, he nominated Mr Perkins as being the “putative author” in the work. He repeated this allegation in his Second Further Amended Statement of Claim.
10 The present defendants then took out a notice of motion seeking orders that the Second Further Amended Statement of Claim be struck out as an abuse of process. Windeyer J heard the motion and ordered that certain paragraphs of the Second Further Amended Statement of Claim be struck out on the basis that the nomination of Kevin Perkins as being only the putative author of the work was inconsistent with his Statement of Claim in proceedings 10735 of 1991 in which he had alleged that Kevin Perkins was the author and in which action the plaintiff, as I have said, was awarded damages by the jury.
11 On 31 August 2000, the plaintiff issued his Third Further Amended Statement of Claim, having been granted leave by Windeyer J so to do. Kevin Perkins is once more nominated as the author of the book.
12 Because of the nature of the arguments raised before me, I believe it to be appropriate to now set out the imputations alleged in the Second Further Amended Statement of Claim issued in the first proceedings, then the imputations contained in the Second Further Amended Statement of Claim in these proceedings and, finally, the imputations which are alleged in the Third Further Amended Statement of Claim which is the subject of the present proceedings (“the present Statement of Claim”):-
“(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 harmful 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.
(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.”(k) That the Plaintiff failed to honour his contractual obligations to Robert Waterhouse.
“ (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 an AJC inquiry into 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 a scurrilous circular known as ‘the Mudrake’ .
(i)(2) That the Plaintiff because of his contribution to a scurrilous circular known as ‘The Mudrake’ 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.
(p) That the Plaintiff behaved so idiotically in his antics on Sydney racetracks as to be the object of general ridicule. ”(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.
“(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 offences 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.
(e) 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, if he would knowingly make false accusations against Robert Waterhouse and William Waterhouse.
(f) 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.
(g) That the Plaintiff is a scandal monger because he wrote anonymous articles for a scurrilous circular known as ‘The Muckrake’.
(h) 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.
(i) That the Plaintiff was so sexually depraved that he would regularly attend video nights at which lewd homosexual videos were shown.
(j) That the Plaintiff sought to engage in sexual acts with male minors.
(k) That the Plaintiff defaulted on his gambling debts.
(l) That the Plaintiff failed to honour his contractual obligations when providing an assessment of the odds of horses in various races to Robert Waterhouse.
(n) That the Plaintiff behaved so idiotically in his antics on Sydney racetracks as to be the object of general ridicule.”(m) 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.
13 It is relevant to note that in the trial before Ireland J, the jury found that imputations (f) and (g), in what I have described as the “Original Imputations”, were true. The jury found that the defendants had failed to establish that imputations (a), (b), (c), (d), (i), (j), (k) and (l) were substantially true. In the Second Amended Statement of Claim, fourteen new imputations are pleaded, namely, (b), (c), (d), (f), (g), (h), (h)(2), (i), (I)(2), (j), (k), (n), (o) and (p). In the Statement of Claim presently before the Court, imputations (h), (i) and (j) which were contained in the Second Further Amended Statement of Claim, have been excluded. Only three imputations as pleaded remain the same (save for some minor changes) as those which were pleaded in proceedings 10735 of 1991, which I have entitled “Original Imputations” in these reasons. In the present Statement of Claim before the Court, those imputations are identified as (a), (j) and (k). They were originally imputations (a), (i) and (j).
14 The plaintiff pleads all fourteen imputations against the second and third defendants but pleads only imputations (a), (k) and (m) against WSW and imputations (a), (d), (f), (i), (j), (k) and (l) against RWW. It should also be observed that, other than the original imputations, now (a), (j) and (k), all the remaining imputations in the present Statement of Claim were pleaded more than six years after the publication of the second reprint. Ex facie then the Limitation Act would debar those imputations unless leave of the Court is obtained. However, in view of my determination of the issue relating to the application of s 5(1)(b) of the Law Reform (Miscellaneous Provisions) Act, 1946, I need not dwell upon that topic.
The Application of Section 5(1)(b) of the Law Reform (Miscellaneous Provisions) Act, 1946
15 In dealing with this issue, I have done so by applying the principles adumbrated by the High Court in General Steel Industries Inc. v Commissioner For Railways (NSW) (1964) 112 CLR 125. The principle there stated is that a plaintiff’s proceedings should not be summarily terminated unless the plaintiff’s claim is so obviously untenable that it could not possibly succeed. In other words, if the defendant’s submissions were not manifestly correct and the plaintiff therefore had an arguable case, the application would have to be refused.
16 The Law Reform (Miscellaneous Provisions) Act, 1946 relevantly provides:-
- 5. (1) Where damage is suffered by any person as a result of a tort (whether a crime or not):
(b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered … against tort-feasors liable in respect of the damage (whether as joint tort-feasors or otherwise) the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given, and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action … .(a) judgment recovered against any tort-feasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tort-feasor in respect of the same damage;
17 Concurrent tortfeasors may be defined as tortfeasors whose acts concur to produce the same damage. Concurrent tortfeasors are either:-
- (a) joint tortfeasors; or
(b) several concurrent tortfeasors.
(See Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 49 ALJR 233).
18 Persons are several concurrent tortfeasors when the independent acts of two persons contribute to the same damage (see The Koursk [1924] P 140).
19 Joint tortfeasors are, in common law, jointly and severally liable for the whole damage subject to the limitation of the rule in Brinsmead v Harrison (1872) LR7CP 584. Section 5(1)(a) of the Law Reform (Miscellaneous Provisions) Act, 1946 abolishes the rule in Brinsmead v Harrison. That rule was that judgment against one or more joint tortfeasors releases the others even though not satisfied; there was but one cause of action which emerged in the judgment against the first tortfeasor sued. Section 5(1)(a) thus would enable the plaintiff to maintain his action against the defendants in this action if they were joint tortfeasors. I should add that the rule in Brinsmead v Harrison was not considered by the common law to apply to concurrent tortfeasors.
20 However, it is plain that s 5(1)(b) applies equally to actions against joint tortfeasors and actions against several concurrent tortfeasors. On a plain reading, s 5(1)(b) provides that where damage is suffered by any person as a result of a tort and more than one action is brought in respect of that damage, the sums recoverable under the judgments given in those actions by way of damages shall not, in the aggregate, exceed the amount of the damages awarded by the judgment first given. Ex facie, the provision does not operate to debar a second or later action in respect of the same damage but rather limits the amount of damages that a plaintiff may recover under subsequent judgments.
21 In essence, what the defendants are contending here is that the proceedings, as pleaded, are either frivolous, vexatious or an abuse of the process of the court. The nub of that argument is that the provisions of s 5(1)(b) are such that the plaintiff’s damages have already been determined and that s 5(1)(b) would so apply to limit any additional damages. It is to be noted that the imputations presently pleaded, as I have stated, are in addition to those which went before the jury in the trial in proceedings 10735 of 1991. The defendants rely upon the provisions of r 13.5 of the Supreme Court Rules which enable a court to stay or dismiss a claim on the basis that it is frivolous or vexatious or the proceedings are an abuse of the process of the Court. The argument which is advanced on behalf of the plaintiff that r 13.1 prevents the application of r 13.5 is, in my view, ill founded. Rule 13.1 reads:-
- “This Division applies to all proceedings except proceedings within the application of section 88 of the Act … .”
22 However, r 13.5 does not fall within Division 1 of Part 13 of the Rules but rather Division 2. The argument, therefore, raised on behalf of the plaintiff in this regard must fail.
23 In Baxter v Obacelo Pty Ltd (2000) 48 NSWLR 522[60], Giles JA reviewed the authorities on the topic. At p 538, he summed up the law as follows:-
- “If joint or concurrent tortfeasors are sued in the same proceedings, the judgments for compensatory damages will be for the same loss suffered by the plaintiff and in the same amount, and there will be no occasion for the limitation of recovery. If the judgments are for different amounts because one of the tortfeasors must pay exemplary damages, s 5(1)(b) may not apply to those damages (see XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (at 469-470), per Brennan J), but if it does there will be no reason to limit recovery to a lower amount simply because the judgment for that amount was given first - that would defeat the award of exemplary damages. Only where settlement brings a first judgment in an amount different from the damages ultimately awarded in a later judgment in the same proceedings can any question of limiting recovery arise, and there is no reason to confine the plaintiff to a settlement amount which might well reflect the tortfeasor’s impecuniosity rather than the plaintiff’s loss. The plaintiff having sued both or all tortfeasors in the one proceedings, there will be no point in limiting recovery in order to discourage multiple proceedings, nor will recovery up to the higher amount of the later judgment necessarily be excessive recovery. Where the plaintiff brings successive proceedings, perhaps striving for a better result with experience, the limitation is appropriate, but not otherwise.”
24 It should be observed that, in Baxter v Obacelo, the original judgment sum obtained by the plaintiff was obtained by way of a settlement. It seems to me that Giles JA’s observation at the conclusion of the passage I have just quoted, namely, “Where the plaintiff brings successive proceedings, perhaps striving for a better result with experience, the limitation is appropriate…”, is applicable.
25 I should add that the law in this State is that there is a separate cause of action in relation to each copy of the book. The single publication of a book, as it is described in the United States has not been adopted in this country. In Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 at 178, Hunt J summed the law up as follows:-
- “In the case of a newspaper, there is a separate publication (and thus a separate cause of action) in relation to each copy delivered to a reader: Duke of Brunswick v Harmer (1849) 14 QB 185 at 189; 117 ER 75, at 76-77. If a newspaper circulates 100,000 copies of the one edition (defamatory of the plaintiff), he has available to him at least 100,000 causes of action. The ‘single publication’ rule adopted in the United States, whereby a plaintiff is given only one cause of action for each entire edition of the newspaper, has not been adopted in this country: see McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513 at 520, 528; 92 WN 611 at 616-617, 625.”
26 When the matter was raised before Windeyer J, this point seems to have been argued on the basis of a claim for relitigation. I am of the view that the matter raised before me is different entirely from that which was raised before Windeyer J and that thus I am not, in determining as I have, overruling the judgment of Windeyer J.
27 As I have mentioned earlier, there is no textual difference between the three editions of the book. As it is plain from the pleadings that the defendants in this matter are tortfeasors, whether they be described as either concurrent or joint tortfeasors, they should have been included in the first proceedings. I so find because, as may be seen from the history of the matter, WSW was added as a cross-defendant in proceedings 10735 of 1991 prior to the issuing of the Statement of Claim in these proceedings. The plaintiff did not join WSW, or for that matter RWW, in proceedings 10735 of 1991. Instead, he chose to issue separate proceedings nominating WSW and RWW as defendants, as well as Kevin Perkins and others. At the time when the present proceedings were instituted, proceedings 10735 of 1991 were still on foot. They remained so until the jury delivered its verdict on 24 March 1999, some two and a quarter years after the issuing of the original Statement of Claim in these proceedings.
28 Any imputations alleged by the plaintiff arise from the same text no matter which edition that text may be found. The compensatory damages awarded to him by the jury in proceedings 10735 of 1991 clearly fall within the ambit of s 5(1)(b) when it is applied to these proceedings.
29 While he argues that what he now seeks is further aggravated damages against the remaining defendants in this action on an expanded number of imputations, I am of the view that the observations of Giles JA in Baxter v Obacelo, which I have quoted above, is applicable here. There can often be a fine line drawn between legitimate procedural tactics and abuse of process. The history of the plaintiff’s procedural manoeuvres following the publication of the first edition of “The Gambling Man”, in my view, demonstrates that he has crossed that line.
30 I am thus of the view that, on applying the provisions of s 5(1)(b) of the Law Reform (Miscellaneous Provisions) Act, 1946, and applying the provisions of r 13.5 of the Supreme Court Rules, I am driven to the conclusion that the plaintiff’s action is in fact an abuse of the process of this Court. I, therefore, am of the view that the proceedings should be dismissed. In the light of this finding, it is not necessary for me to consider the other matters raised.
31 The order of the Court is that there should be judgment for the remaining defendants plus costs.
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