Pollack v Harris - [2001] NSWSC 852

CITATION: POLLACK v HARRIS [2001] NSWSC 852

FILE NUMBER(S): SC 20685/2000

HEARING DATE(S): 10 May 2001

JUDGMENT DATE:
28 September 2001

PARTIES :

Plaintiff: Philip Pollack
Defendant: Arthur Harris

JUDGMENT OF: Hulme J at 1

COUNSEL : Plaintiff: C Evatt
Defendant: D Campbell

SOLICITORS: Plaintiff: Philip J Beazley
Defendant: In person

DECISION: See paragraph 46

- 10 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

NO: 20685 of 2000

28 September 2001

PHILIP POLLACK v ARTHUR HARRIS

JUDGMENT

HIS HONOUR

1 By Statement of Claim filed on 18 December 2000, the abovenamed Plaintiff instituted proceedings against the Defendant for defamation. There were three counts, each arising from a separate publication.

2 As particularised, the first count arose from statements the Defendants were said to have made in a taxi in 1997. During the course of proceedings before me, counsel appearing for the Plaintiff indicated that it was proposed to amend the date particularised to mid to late 1998.

3 In the second count, the Plaintiff complained about the contents of a letter written on or about 28 August addressed to the Plaintiff but apparently sent to a Mr Ramrakha who seems to have then been acting as the Plaintiff’s solicitor. It is asserted that the letter was read by Mr Ramrakha, his secretary and staff. Arising from this letter four imputations were pleaded but during the course of proceedings, counsel for the Plaintiff conceded that the first three did not arise and the claim in respect of them would be abandoned.

4 In the third count the Plaintiff asserted the republication of the letter, the subject of the second count, to a Mr R O’Neill on or about 6 December 2000. In this count the imputations pleaded under the fourth count were repeated and again it was indicated that the first three would be abandoned.

5 By Notice of Motion filed on 8 March 2001, the Defendant has sought orders that:-

1. Paragraphs 1 and 2 of the Statement of Claim (the first count) be struck out as an abuse of process.

2. Paragraphs 1 and 2 of the Statement of Claim be struck out by reason of the failure of the Plaintiff to identify properly or at all the matter complained of.

3. Paragraphs 3 to 6 of the Statement of Claim (the second and third counts) be struck out as an abuse of process.

4. Declarations or other orders that the publications, the subject of the second and third counts were publications made on occasions of absolute privilege.

5. That each of the imputations the subject of the second and third counts be struck out or held to be incapable of arising from the matters complained of.

6. That the proceedings be dismissed under Part 13 Rule 5 or otherwise.

7. That the proceedings be stayed until the Plaintiff complies with orders made in District Court proceedings 9053 of 1999 and Supreme Court proceedings 20867 of 1997 by paying to the Defendant 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 Pollack v Harris

Details

AGLC: Pollack v Harris [2001] NSWSC 852
Case: [2001] NSWSC 852
Decision Date: 28 September 2001

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Philip Pollack initiated defamation proceedings against Arthur Harris, stemming from three separate publications. The first count concerned statements allegedly made by Harris in a taxi in 1997. The second and third counts pertained to a letter dated 28 August and its republication to a third party on 6 December 2000. Harris sought to have the proceedings dismissed or stayed on various grounds, including abuse of process and the principle that prevents a second action for the same matter until the costs of the first action have been paid. Additionally, he argued that certain imputations in the Statement of Claim were incapable of arising from the publications and that the proceedings were an abuse of process.

Hulme J dismissed most of Harris's submissions. The court found that the principle preventing a second action for the same matter until the costs of the first action have been paid did apply to the first count, but only in relation to the costs of the District Court proceedings. The court also found that the Plaintiff had sufficiently particularised the defamatory words in his Statement of Claim. However, the court struck out the imputations in the second and third counts, finding they were not capable of arising from the publications. The court further found that the proceedings were not an abuse of process, as they were brought to remedy the wrongs alleged, not for a collateral purpose.

The court made several orders, including staying further proceedings in respect of the first count until Pollack paid the assessed costs of the District Court proceedings, striking out the second and third counts, and ordering Pollack to pay Harris's costs of the Notice of Motion filed on 8 March 2001. The Notice of Motion filed on 12 April 2001 was stood over generally.

Orders