Harris v Perkins

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): (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;

(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 … . 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.