POLLACK v HARRIS [2001] NSWSC 852

New South Wales Supreme Court

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

HULME J 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 costs ordered to be paid following the costs assessment of Mr O'Neill. 6 For completeness I should add that there was another Notice of Motion filed on 12 April 2001 in which the Defendant sought to have determined a question as to the date the publication complained of was made and as to the identity of the publisher. After some discussion, it was common ground that I should not address those questions. It seems to me that it is premature to address either prior to the filing of a defence, interim or otherwise. 7 The bases of prayers 1 and 7 lay, in part, in other litigation between the parties. In Supreme Court proceedings 20867 of 1997 Mr Pollack had sued a Mr David Waterhouse and Mr Harris. Although it should perhaps be said that the subject of that litigation differed from that here, details of the complaints made are not otherwise relevant. 8 Insofar as the Statement of Claim in those proceedings made allegations against Mr Harris it was struck out by Levine J on or about 27 October 1999 upon the ground that the statements attributed to Mr Harris were subject to absolute privilege (the Judgment of Levine J was not before me but it is referred to in Reasons for Judgment of Judge Christie of 14 April 2000, as the parties agreed, accurately). Levine J. made an order for costs in favour of Mr Harris and against Mr Pollack. 9 Levine J also ordered the transfer of the proceedings to the District Court where they became proceedings 9053/99. There the Plaintiff obtained the benefit of an order from Judge Christie. Its precise terms are not before me but it was referred to by His Honour in Reasons of 14 April 2000 in the following terms:- "A couple of weeks ago, I gave the Plaintiff leave to file an Amended Statement of Claim or a draft Amended Statement of Claim. I do not think much turns on that and consequently, a document entitled "Further Amended Statement of Claim" was filed in this Registry and I shall treat it as a draft, which was the manner in which I allowed it to be filed." 10 It appears from His Honour's Reasons that under the auspices of the leave Mr Pollack had either rejoined, or sought to rejoin, Mr Harris as a Defendant. The claim then made against Mr Harris was for damages for defamation based on the remarks he is said to have made to a taxi driver on the occasion referred to in paragraph 2 above. Judge Christie took the view that there was no significant connection between the complaint against Mr Harris and that against Mr Waterhouse, observing in the course of his Reasons of 14 April:- "I think this application was made for no more than a transparently clear, forensic reason and no doubt for many reasons, I can think of at least dozens. That was the purpose of leaving Mr Harris in this litigation for the very forensic advantage that it is perfectly obvious from a reading of this file, if not by reason of public notoriety, that Mr Harris and some members of the Waterhouse family are less than friendly. It was for the forensic purpose of keeping him in this litigation that this application was made, and I have no hesitation in criticising those whose ingenuity led to this application. It will be dismissed with costs and I order the Plaintiff to pay Mr Harris' costs on an indemnity basis, on the basis the application should never had been made and was never capable of the slightest modicum of success." 11 With a view to receiving payment under the orders for costs which had been made, Mr Harris wrote a number of letters. These included letters of:- 12 April 2000 to Mr Ramrakha (dealing with the costs before Levine J). 5 May 2000 to Mr Ramrakha (referring to the orders for costs in both courts). 13 June 2000 to Mr Ramrakha (referring to costs in both courts). 12 There was also the letter of 28 August 2000 referred to in paragraph 3 above. In it Mr Harris said he enclosed a copy of Form 3 under the Legal Profession Regulations for the assessment of party/party costs and asserted that if Mr Pollack had any objections he must lodge them with Mr Harris within 21 days. 13 Not having received a reply from Mr Pollack, on 9 October 2000 Mr Harris filed in the Supreme Court an application for assessment of costs, which application the Court referred for assessment to Mr O'Neill. 14 After some correspondence it is presently unnecessary to detail, Mr O'Neill issued his assessment on 13 February 2000 in an amount of $6,476.90. Upon receipt of the certificate in this regard, Mr Harris attended the District Court on 19 February where, as his Affidavit of 8 March 2001 asserts and Section 208J of the Legal Profession Act 1987 contemplates, the Certificate was registered as, and is now taken to be, a judgment of that Court. 15 Mr Pollack has paid no money in reduction of the amount, the subject of Mr O'Neill's assessment and it is Mr Pollack's failure to make payment that Mr Harris relies on in support of prayers 1 and 7. 16 There is no doubt as to the existence of a principle to the effect that where a Plaintiff has failed in one action, a second "for the same matter" will generally be stayed until costs ordered in the first action to be paid have been paid – see McCabe v Bank of Ireland (1889) 14 AC 413; Bowen v Hickey (1961) 78 WN (NSW) 820 at 822. It does not matter that the proceedings were brought in different courts – Boase v Jones (1925) VLR 465. 17 There are no grounds for concluding that the general principle should not apply here. Thus proceedings on at least the first count should be stayed until the costs of the District Court proceedings have been paid. However, I was referred to no case that suggested that the principle applied to situations where the earlier proceedings were in respect of a different matter and consequently there is no justification for the stay to be conditioned on non-payment of the costs of the earlier proceedings in this Court. Nor does it seem to me that any stay should extend beyond so much of the present proceedings as was the subject of proceedings earlier. 18 However, although neither counsel referred to it, there is in this case a complication. I would infer from the fact that the order for assessment by Mr O'Neill was made by this Court and Mr O'Neill's certificate is entitled "In the Supreme Court", that it related to the costs of proceedings in this Court, not those in the District Court. In fact the Plaintiff's claim to, and the assessment of $6,476.90 made by, Mr O'Neill is the total of the costs claimed by the Plaintiff under the orders of Levine J - $3,900.05 and in the District Court - $2,476.85 and the $100.00 fee paid for the assessment application. 19 Whether this is a matter of no consequence to the parties is not a matter on which there is any evidence. The extent of the litigation which has ensued would suggest that all points that can be taken are, but Mr Pollack is a solicitor, he may be inferred to have at least rudimentary knowledge of the practice relating to costs and would seem to have had plenty of notice of what Mr O'Neill was being asked to assess. Indeed he made representations to Mr o'Neill as to the quantum of costs in the District Court which should be allowed. And, as I have indicated, Mr O'Neill's assessment has been registered and is taken to be a judgment. In other words, whether correctly or not, Mr Pollock's liability under the order for costs made by Christie J has been determined. 20 When regard is had to the rationale behind the principle upon which Mr Harris relies, viz. to prevent the continuation of proceedings which are vexatious or an abuse of process, it seems to me that proceedings the subject of the first count in the existing Statement of Claim should be stayed until the Plaintiff pays the Defendant the sum of $2,476.85, being the amount of costs assessed in respect of the District Court proceedings. 21 A further basis upon which the Defendant submitted that the instant proceedings were an abuse of process lay in the contention that the proceedings were not commenced by way of redress for wrongs suffered but rather for a collateral purpose, viz. to stymie the costs assessment process. 22 In that regard counsel for the Defendant drew attention to the time which had elapsed between the refusal of Christie J to permit joinder - April 2000 and the commencement of the proceedings – December 2000, the situation of the costs assessment at that time, the fact that in a letter of 22 December 2000 the Plaintiff had written to Mr O'Neill suggesting that he not continue with the assessment because proceedings in respect of the publication to Mr O'Neill had been commenced. Reliance was also placed on the remarks of Christie J. which I have quoted. 23 I am content to proceed on the basis that proceedings, well founded in law and fact, may yet be an abuse of process if brought for a collateral purpose rather than to enforce the rights asserted in the proceedings – see Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 99. However, although the matters to which I was referred provide grounds for thinking that the Plaintiff may well have been inspired by some collateral purpose to bring the proceedings, the evidence does not enable me to conclude that they are not also brought by way of remedy for the wrongs the Plaintiff says he has suffered. I am not disposed to grant any stay on this ground – see Williams v Spautz (1991-1992) 174 CLR 509 at 522, 535. See also Metall & Rohstoff v Donaldson Inc (1990) 1 Q B 391 at 469. 24 The bases of the second prayer in the Notice of Motion lie in the terms of the pleading of the first count and in particulars of it contained in a letter of 9 February 2001 from the Plaintiff's present legal advisers. In the Statement of Claim it is alleged that Mr Harris spoke the following words:- "Philip Pollack is associated with the Waterhouses. He is a crook. The Law Society struck him off. I am going to expose him. He is an evil man." 25 In the letter of particulars of 9 February 2001 it is said that Mr Kinnon's best recollection of what was said and the context of what was said is contained in a paragraph there set out. It is unnecessary to refer to all of that paragraph. It is sufficient to record the following:- "Mr McKinnon remembers saying words to the effect: "Do you know Mr Evatt and Mr Pollack?" You (i.e. Mr Harris) said words to the effect: "Phillip Pollack is associated with the Waterhouses. He is a crook. The Law Society struck him off. I am going to expose him. He is an evil man." 26 On Mr Harris' behalf it is submitted that as in an action "in libel and slander, the very words complained of are the facts in which the action is grounded", the Plaintiff cannot succeed unless those precise words are identified. Mr Campbell, who appeared for the Plaintiff, submitted that the words "to the effect" indicate such lack of particularity that the Plaintiff cannot succeed, albeit conceding that if the Statement of Claim had stood alone, he could not make this complaint. 27 During the course of argument he carried this submission to its logical conclusion. He contended that if the person who heard the words said to have been defamatory said "Look, I didn't have a tape recorder running. I can't recall the precise words which were said to me. My best recollection of them is "A, B, C.", any person defamed by "A, B, C." could not successfully sue. 28 I do not agree with the submission. If a Plaintiff is unable to set out in his Statement of Claim the very words of a libel or slander, the appropriate course is to set out the closest approximation he can – Gatley on Libel and Slander, 9th ed., paras. 26.16 – 26.17. He must "set out the words with reasonable certainty" – Collins v Jones (1955) 1 QB 564 at 571. That is what the Plaintiff has done. 29 A second complaint is that the Statement of Claim does not contain the whole of the conversation which occurred between Mr Harris and Mr McKinnon. A Plaintiff is obliged to include within his pleading every passage which materially alters or qualifies the complexion of the imputation complained of, or is capable of doing so – Gordon v Amalgamated Television Services Pty Ltd (1980) 2 NSWLR 410 but matter which is "altogether foreign and inapplicable" or "which does not alter, qualify or otherwise affect the sense of the matter held to be capable of a defamatory meaning" should be omitted – Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd (1971) 1 NSWLR 472 at 480. 30 There is no evidence that any relevant material not included in the letter of particulars has been omitted. Nor am I persuaded that the additional material in the letter of particulars alters, qualifies or otherwise affects the sense of what has been pleaded. Accordingly this ground of complaint also fails. 31 The basis of the third prayer in the Notice of Motion is that the publications, the subject of the second and third counts, arose in the course of, or by reason of the earlier proceedings to which I have referred and from Mr Pollack's default in complying with the orders for costs and so the counts relating to them ought to be treated in the same manner as the first count. The principle about staying proceedings for non-payment of earlier orders for costs does not extend so far and, as I indicated above, I see no basis for the approach urged. 32 In support of the fourth prayer and the contention that the occasions of publication were occasions of absolute privilege, it was submitted:- (i) the publications, the subject of the second and third counts were made in the course of Mr Harris seeking recovery of costs ordered to be paid, (ii) the publication to Mr Ramrakha and his staff was to the solicitor on the record for Mr Pollack in compliance with the requirements of clause 26C of the Legal Profession Regulations that a copy of Form 3 under the Regulations be sent to the person liable to pay the costs, (iii) the publication to Mr O'Neill was while he was fulfilling a quasi-judicial role, and (iv) the publication to Mr O'Neill was in circumstances where Mr Harris was seeking to answer a letter from Mr Pollack to Mr O'Neill dated 12 December 2000. 33 Paragraph (i) and (ii) may be accepted as correct in their description of the occasions on which the publication to Mr Ramrakha and his staff was made. However the remarks said to have been defamatory – those in the third and sixth paragraphs - were not obviously a necessary incident of those occasions. For the letter sent to Mr Pollack and a copy of which was sent to Mr Ramrakha was in the following terms:- "I refer to my previous correspondence on the matter of costs dated April 12 2000, May 5 2000 and June 13 2000. These included copies of invoices from my barristers and there is no need for me to duplicate that information. As I have received no word from you on the matter of costs and as you have elected to remain silent (being a solicitor who understands these matters) I assume that you contest the whole bill. Enclosed is a copy of Form 3 for the assessment of party/party costs. You are no doubt familiar with such a form. As you know if you have any objections you must lodge them with me in writing within 21 days after receiving this letter. I refer you to the relevant section of the Legal Profession Regulations and a copy of the relevant extract is attached to the Form 3. I remind you that I am contemplating proceedings against you and Mr Evatt for malicious prosecution and draw your attention to the following Section of the judgment of Judge Christie (14 April 2000 p6). I think this application was made for no more than a transparently clear, forensic reason and no doubt for many reasons, I can think of at least a dozen. That was for the purpose of leaving Mr Harris on this litigation for the very forensic advantage that is perfectly clear from a reading of this file, if not by reason of public notoriety, that Mr Harris and some members of the Waterhouse family are less than friendly. It was for the forensic purpose of keeping him in this litigation that this application was made, and I have no hesitation in criticising those whose ingenuity led to this application. It will be dismissed with costs and I order the Plaintiff to pay Mr Harris' costs on an indemnity basis, on the basis that the application should never have been made and was never capable of the slightest modicum of success. Since you are a solicitor I take this opportunity to also ask you to present me with an argument why I should not so proceed. I am willing to listen to reason as it (sic) the long run it might save time and money for both of us. I am also sending a copy of letter and the Form 3 by registered mail to your solicitor Mr Ramrakha. 34 There is much to be said for the view that only the first, second and last paragraphs have any relationship with the assessment of costs. 35 That there may be some limit on the extent to which remarks made during occasions which prima facie attract absolute privilege is apparent from Gatley on Libel and Slander 9th. Ed. Paras. 13.7, 13.11. See also Mann v O'Neill (1996-1997) 191 CLR 204 at 212. Neither counsel before me attempted a thorough review of the authorities on the topic or even referred to decisions such as Seaman v Netherclift (1876) 1 CPD 540 and on appeal, (1876) 2 CPD 53, and the issue is not one which can so clearly be resolved in favour of the Defendant that it should form the basis for disposal of the counts to which it relates. 36 The statement made in paragraph (iii) above may also be accepted but in any decision as to its consequences, similar considerations to those in the immediately preceding paragraph apply. 37 The proposition set out in paragraph (iv) above is factually inaccurate, in that the publication to Mr O'Neill preceded any letter of 12 December. However, Mr Harris' letter of 6 December which included the publication said to have been defamatory was by way of response to a letter of 4 December Mr Pollack had apparently sent to O'Neill dealing with the topic of the costs assessment. I do not find it necessary to address the consequences of this. 38 In short, I am not disposed on this application to grant the relief sought in the fourth prayer. 39 In light of Mr Evatt's concessions the fifth prayer, seeking that the imputations the subject of the second and third counts be struck out as incapable of arising from the publication, now relates only to the claimed imputation that:- "The Plaintiff so conducted himself that the Defendant was justified in contemplating proceedings against him for malicious prosecution." 40 In deciding whether the publication complained of is capable of conveying this imputation I approach the matter in accordance with the statement of Hunt J in Farquhar v Bottom (1980) 2 NSWLR 380 at 385-6. Adopting that approach, I do not regard the imputation as one capable of arising. What was said does not in terms refer to any act or condition or attribute of Mr Pollack. Certainly the statement suggests that there must have been some actions by Mr Pollack such as a prosecution of Mr Harris, and possibly that the prosecution was unsuccessful but it strikes me as entirely neutral on the question of whether that prosecution had any of the other attributes making it malicious. Mr Harris' contemplation of proceedings was as likely to be due to any one of a myriad of circumstances, including misunderstanding of the relevant principles or facts or antagonism towards Mr Pollack. The potential for Mr Harris to contemplate proceedings for so many reasons other than actions or attributes of Mr Pollack which reflect adversely on him means that no reasonable reader, even with the latitude recognised in this field, could draw the imputation alleged. 41 In reaching this conclusion I am not unaware of the line of cases which establish that a report that a person is being investigated or charged gives rise to an imputation that the person is suspected of having committed an offence – see e.g. Lewis v Daily Telegraph (1964) AC 264; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; Ainsworth Nominees Pty Ltd v Hanrahan (1982) 2 NSWLR 823. However it seems to me that this inference or implication arises because of what is thought to be the knowledge and experience of human affairs of the ordinary reasonable reader – c.f. Mirror Newspapers Ltd v Harrison, at 301. It seems to me another matter entirely to draw inferences or implications such as are involved here because one named person is contemplating proceedings. A fortiori is this so if the person is one who is known to be already or previously in litigious dispute with Mr Pollack. 42 Accordingly, the imputation the subject of the second and third counts of the Statement of Claim should be struck out. 43 The sixth prayer was sought to be supported by the argument that the proceedings have been brought for an impermissible collateral purpose, namely in an effort to stymie the costs assessment process. I have said enough to indicate that I am not disposed to grant relief on this ground. 44 However the question arises as to the consequences which should flow from my decision to strike out the only imputations pleaded and pressed in the second and third counts. At the hearing there was no application that, if I came to this view, I should afford the Plaintiff an opportunity to replead. In light of this, the fact that counsel felt constrained to abandon 3 of the imputations originally pleaded, and the numerous prayers directed to ending the proceedings, it seems to me that the appropriate order to reflect my conclusion as to the only imputation which was pressed is to strike out the second and third counts. 45 While the Defendant has not succeeded completely in obtaining the relief sought, he has obtained the vast bulk of it. In these circumstances the Plaintiff should pay the Defendant's costs of and incidental to the Notice of Motion filed on 8 March 2001. 46 My orders are:- (i) Stay further proceedings in respect of the first count (paragraphs 1,2, 7 and 8) in the Statement of Claim until the Plaintiff pays the Defendant the sum of $2,476.85, being the amount of costs assessed in District Court proceedings 9053/99. (ii) Strike out counts 2 and 3 (paragraphs 3 – 6) of the Statement of Claim. (iii) Order that the Plaintiff pay the Defendant's costs of and incidental to the Notice of Motion filed on 8 March 2001. (iv) Stand over generally the Notice of Motion filed on 12 April 2001. **********