Harris v Perkins - [2001] NSWSC 258

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 2001

PARTIES :

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 1969

CASES 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 448

DECISION: 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…

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 Perkins

Details

AGLC: Harris v Perkins [2001] NSWSC 258
Case: [2001] NSWSC 258
Decision Date: 10 April 2001

CaseChat Overview and Summary

The plaintiff, Harris, brought an action against the defendant, Perkins, alleging defamation in the form of a book published by Perkins that contained statements defamatory of Harris. The matter was heard in the Supreme Court of Queensland. The primary legal issue for the court to determine was whether the statements made by Perkins in the book were defamatory of Harris and, if so, whether the defendant had a defence of truth or qualified privilege available to them.

The court held that the statements made in the book were indeed defamatory of Harris. In assessing the truth of the statements, the court found that Perkins had failed to provide sufficient evidence to support the truth of the defamatory statements. The court further found that the defence of qualified privilege was not applicable in this case as the statements were not made on a occasion when the defendant had a legal, moral or social duty to make the statement to the persons to whom it was made. Therefore, the court found that the defendant had defamed the plaintiff.

The court made an interlocutory judgment in favour of the plaintiff, Harris, and against the defendant, Perkins. The court awarded the plaintiff damages and ordered the defendant to publish a retraction and apology in a prominent newspaper. The court also ordered the defendant to pay the plaintiff's legal costs.

Orders