Bracks v Smyth-Kirk [2008] NSWSC 930

Bracks v Smyth-Kirk [2008] NSWSC 930

The amended statement of claim in the Denoon proceedings, construed objectively and in context, pleaded a cause of action against Mr Denoon as a joint tortfeasor in the publication of the whole letter published by Mr Smyth-Kirk. The damage caused by that publication was the same damage now sued on against Mr Smyth-Kirk. Because judgment for $26,000 had already been entered and paid in respect of that damage, s 5(1)(b) of the Law Reform Miscellaneous Provisions Act 1946 precluded any additional recovery, making maintenance of the present proceedings an abuse of process.

Jurisdiction
Australia
Judgment Date
09 September 2008
Procedural Posture
Defamation Proceedings / Notice of Motion Seeking Dismissal of Proceedings as an Abuse of Process Under R 13.4(1) of the Uniform Civil Procedure Rules
Outcome
The proceedings were dismissed.
Legal Topics
['abuse of Process' 'repetition and Republication' 'joint Tortfeasors' 'recovery of Damages for Same Damage' 'law Reform Miscellaneous Provisions Act 1946 S 5(1)(b)']
['defamation' 'civil Procedure' 'torts'] ['abuse of Process' 'repetition and Republication' 'joint Tortfeasors' 'recovery of Damages for Same Damage' 'law Reform Miscellaneous Provisions Act 1946 S 5(1)(b)']

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Procedural Posture

Defamation Proceedings / Notice of Motion Seeking Dismissal of Proceedings as an Abuse of Process Under R 13.4(1) of the Uniform Civil Procedure Rules

Legal Issues

  1. 1 ['Whether the present defamation proceedings were brought in respect of the same damage for which Mr Bracks had already recovered judgment against Mr Denoon.' 'Whether the amended statement of claim in the Denoon proceedings sued on the whole of the letter published by Mr Smyth-Kirk as a republication, or only on the words attributable to Mr Denoon.' 'Whether s 5(1)(b) of the Law Reform Miscellaneous Provisions Act 1946 precluded any additional recovery against Mr Smyth-Kirk.' 'Whether maintaining the present proceedings would be an abuse of process.']

Ratio Decidendi

The amended statement of claim in the Denoon proceedings, construed objectively and in context, pleaded a cause of action against Mr Denoon as a joint tortfeasor in the publication of the whole letter published by Mr Smyth-Kirk. The damage caused by that publication was the same damage now sued on against Mr Smyth-Kirk. Because judgment for $26,000 had already been entered and paid in respect of that damage, s 5(1)(b) of the Law Reform Miscellaneous Provisions Act 1946 precluded any additional recovery, making maintenance of the present proceedings an abuse of process.

Court Disposition

The proceedings were dismissed.

Orders

  • ['The proceedings are dismissed.' 'The Court will hear the parties on the question of costs.']