New South Wales Supreme Court CITATION : Harris v Perkins & Ors [2003] NSWSC 886 HEARING DATE(S) : 18/09/03 JUDGMENT DATE : 2 October 2003 JUDGMENT OF : Cripps AJ at 1 DECISION : Application that third further amended statement of claim be dismissed or permanently sayed be dismissed. Defamation Act 1974 LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1946 Supreme Court Rules CASES CITED : Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Arthur Harris (plaintiff) Kevin Perkins (first defendant) PARTIES : 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) FILE NUMBER(S) : SC 21479/96 COUNSEL : D Campbell SC - plaintiff C Evatt - fourth and fifth defendants SOLICITORS : Verekers - plaintiff Ramrakha Jenkins solicitors - defendants IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST CRIPPS AJ Thursday, 2 October, 2003 21479/96 - Arthur Harris v Kevin Perkins & 4 Ors JUDGMENT 1 HIS HONOUR: The single issue for determination in the notice of motion is whether the plaintiff, Mr Harris, is precluded from maintaining against the defendants, William Stanley Waterhouse and Robert Waterhouse, that they published defamatory material of and concerning him and/or that the republication of defamatory material was the natural and probable consequence of their publication. History 2 In November 1990 a book entitled "The Gambling Man" was published in Australia. It purported to have been written by Mr Kevin Perkins and published by Gordon and Gotch. 3 The case went to trial in February 1999 and the plaintiff, Mr Harris, was awarded $20,000 damages. 4 The book was reprinted in 1991 and in October1992. Neither Mr William Waterhouse nor Mr Robert Waterhouse were defendants in those proceedings. 5 In 1996 Mr Harris commenced further defamation proceedings against, inter alia, Mr William Waterhouse and Mr Robert Waterhouse. Mr Perkins was originally joined as a defendant but without the leave of the court as required by s9(3) of the Defamation Act 1974. Mr Harris discontinued proceedings against him. 6 The present notice of motion came before Newman AJ on 10 April 2001 who held that the proceedings were an abuse of process by operation of s5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946. On 3 March 2003 the Court of Appeal reversed the decision of Newman AJ and remitted the remainder of the notice of motion to the common law division of the court. 7 The notice of motion sought a number of orders, but the only one with which I am concerned is so much of it as alleges that: "The third further amended statement of claim filed on behalf of the plaintiff be struck out, dismissed or permanently stayed, pursuant to the provisions of Pt 13 r5 and/or Pt 15 r26 of the Supreme Court Rules ." 8 Central to the case for the respondents is that the present claim against the Waterhouses contravened an earlier decision by Windeyer J on 10 August 2000 and that, for that reason, it should be struck out. 9 Windeyer J was concerned with the second further amended statement of claim which alleged that "The Gambling Man" was "putatively authored" by Perkins and that the Waterhouses supplied material at their discretion and wrote so much of the book as they wished to write and maintained overall editorial control over what Perkins wrote. It was alleged that they approved and authorised the entire contents of the book and maintained editorial control over the first reprint and the second reprint and that they approved and authorised the publication of the book and the first reprint and the second reprint. 10 Windeyer J, on 10 August 2000, struck out these claims on the ground that Mr Harris was making wilfully inconsistent allegations and that, if the case were to proceed on the pleadings, it could result in an inconsistent finding of fact and, as well, the re-litigation of issues already determined in previous proceedings. 11 It is to be noted that Windeyer J rejected a submission that the claims made by Mr Harris against the Waterhouses should be struck out conformably with the principles derived from Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. That circumstance has some relevance because the Court of Appeal in the present motion declined to entertain an oral application made to it for leave to appeal from the decision of Windeyer J on this issue. Windeyer J found, however, that the allegation that Perkins was not the author of the book was inconsistent with the way Mr Harris' case was put to the jury in the first action – viz. that the book was written by Mr Perkins. 12 As Windeyer J said: "What is now being claimed by Harris is that there was joint authorship of the book, the Waterhouse defendants writing so much of the book as they wished. This means not only that it is not stated who wrote the material complained of, but also that paragraph 4(a) is inconsistent with 7 and both are inconsistent with the claim in the first action." 13 On behalf of the Waterhouses Mr Evatt has submitted that the allegations presently in the third amended statement of claim are inconsistent with the decision of Windeyer J and amount, in effect, to a repetition of the allegations struck out by Windeyer J. 14 It seems to me that what is at issue now is whether Mr Harris is precluded from claiming, as against the Waterhouses, that they published defamatory material of and concerning the him because previously he had made a successful claim against Mr Perkins that he had published defamatory material of and concerning the plaintiff, and, as well, that he was the author of that material. The issue before me is not whether the decision of Windeyer J, on the issue determined by him unfavourable to Mr Harris, was the correct decision or not. The issue is whether the present claim in the third amended statement of claim is an abuse of process. 15 As I would understand the claim being made against the Waterhouses, it is that, on becoming aware that Perkins intended to write a book, and knowing that the book would be concerned with their family's activities, they entered into an agreement with Perkins whereby Perkins would include in the book matter of and concerning the plaintiff as supplied to him by the Waterhouses. That is to say, they wish to maintain a claim that the Waterhouses gave information to Perkins that was defamatory of him and that by giving it to him they published that information in circumstances where it was highly probable that what they were publishing to him would reach a far wider audience. 16 In my respectful opinion, the question of whether Perkins was the "author" of the book is really a diversion. The circumstance that Harris received $20,000 in the previous proceedings may have implications on the question of damages claimed by him against the Waterhouses in the present case. However, it does not, in my opinion, preclude the Waterhouses from making the allegations they make. I accept that in the earlier proceedings before the jury Harris' counsel referred to Perkins as being the author of the book. But the issue before the jury was whether Perkins published defamatory material of and concerning the plaintiff. In my opinion it is open to the plaintiff to maintain his present claim against the Waterhouses – at least it is not an abuse of process for them to do so. Accordingly, I reject the submission that it is. 17 There are other aspects of the notice of motion remaining to be determined. The formal order I make is that the application that the third further amended statement of claim be dismissed or permanently stayed pursuant to the provisions of Pt 13 r5 and/or Pt 15 r26 of the Supreme Court Rules be dismissed. ********** Last Modified: 10/09/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.