Bracks v Smyth-Kirk [2009] NSWCA 401

New South Wales Court of Appeal

CITATION: Bracks v Smyth-Kirk [2009] NSWCA 401

HEARING DATE(S): 5 June 2009

JUDGMENT DATE: 7 December 2009

JUDGMENT OF: Allsop P at 1; McColl JA at 7; Young JA at 157

DECISION: 1. Leave to appeal granted. 2. Appeal dismissed with costs.

CATCHWORDS: TORTS – joint tortfeasors – successive defamation proceedings by plaintiff against different defendants – first proceedings settled in plaintiff's favour and judgment satisfied – second proceedings dismissed as abuse of process – whether claim in second proceedings brought in respect of "damage" claimed in first proceedings – Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(b) - STATUTORY INTERPRETATION – acts of parliament – interpretation – meaning of "damage" – Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(b) - STATUTORY INTERPRETATION – regulations – whether second proceedings abuse of process where defendant in second proceedings does not assert plaintiff fully recouped loss through settlement of first proceedings – Uniform Civil Procedure Rules 2005 (NSW), 13.4(1) - APPEAL – appeal – points and objections not taken below – trial conducted on common ground that second proceedings were an abuse of process if s 5(1)(b) applied – whether appellant should be permitted to repudiate that position on appeal - APPEAL – appeal – right of appeal – whether dismissal of proceedings as abuse of process final or interlocutory judgment – whether appeal involved matter amounting to $100,000 or more – Supreme Court Act 1970 (NSW), s 101(2)(r) - WORDS AND PHRASES – "damage"

Defamation Act 2005 (NSW) Law Reform (Joinder of Actions) Amendment Act 1978 (NSW) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Supreme Court Act 1970 (NSW) Wrongs Act 1958 (Vic) LEGISLATION CITED: Federal Court of Australia Act 1976 (Cth) Judicature Act 1873 (UK) Taxation Administration Act 1953 (Cth) Defamation Act 1992 (NZ) Law Reform (Married Women and Tortfeasors) Act 1935 (UK) Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)