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Carter v O'Connell

Carter v O'Connell

Case [2009] WASC 245 3 September 2009

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CARTER -v- O'CONNELL [2009] WASC 245

CORAM: LE MIERE J

HEARD: 9 APRIL 2009

DELIVERED : 3 SEPTEMBER 2009

FILE NO/S: CIV 1124 of 2008

BETWEEN: ANDREW LEONARD CARTER
Plaintiff
AND
RONAN O'CONNELL
First Defendant
WEST AUSTRALIAN NEWSPAPERS HOLDINGS LTD (ACN 053 480 845)
Second Defendant
PHILLIP O'REILLY
Third Defendant
WEST AUSTRALIAN TURF CLUB
Fourth Defendant
RACING AND WAGERING WESTERN AUSTRALIA
Fifth Defendant

Catchwords:

Practice and procedure - Application to amend the name of a party - Whether leave should be granted to amend writ - Whether there was a genuine mistake in the name of the party - Whether mistake was misleading - O 21 r 5(3) Rules of the Supreme Court 1971 (WA) - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)
Western Australian Turf Club Act 1982 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff:     Mr J P MacLaurin
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     Mr R W Richardson
Fourth Defendant          :     No appearance
Fifth Defendant            :     Mr C S Gough

Solicitors:

Plaintiff:     Maxim Litigation Consultants
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     Solomon Brothers
Fourth Defendant          :     No appearance
Fifth Defendant            :     Minter Ellison

Case(s) referred to in judgment(s):

Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231
Gregory Ronald Rushton & Andrew Cairns v The West Australian Turf Club [2000] WAIR Comm 202
R v R L and J F [2008] EWCA Crim 1970
Re McJannet; Ex Parte Minister for Employment, Training and Industrial Relations (1995) 184 CLR 620
Western Australian Turf Club v Federal Commissioner of Taxation (1978) 139 CLR 288

LE MIERE J:

Introduction

The second defendant published in a column in the 19 February 2007 edition of The West Australian newspaper an article that the plaintiff says is defamatory of him. The article appeared in a column edited by the first defendant. The article refers to events that allegedly occurred at Belmont Park racecourse.
On 12 February 2008 the plaintiff commenced this action. The plaintiff's indorsement of claim on the writ says that his claim is for damages for defamation in respect of defamatory comments published by the first and second defendants in the article and that the article involved a republication of the third defendant's defamatory comments of and concerning the plaintiff. The indorsement further says that the third defendant made the defamatory comments in his role as an employee, officer or agent of the fourth defendant and/or the fifth defendant.
The fourth defendant is described on the writ as 'West Australian Turf Club'. The plaintiff now applies to amend the writ by amending the name of the fourth defendant to 'Edward Van Heemst in his capacity as Chairman of and Nominal Defendant for The Western Australian Turf Club'. It is common ground that Mr Van Heemst is the Chairman of The Western Australian Turf Club.
The application is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carter v O'Connell

Details

AGLC: Carter v O'Connell [2009] WASC 245
Case: [2009] WASC 245
Decision Date: 3 SEPTEMBER 2009

CaseChat Overview and Summary

The case of Carter v O'Connell involved a legal dispute where the plaintiff sought to amend the name of a party listed in the writ. The application was made under Rule 21 r 5(3) of the Rules of the Supreme Court of Western Australia. The defendant opposed the application, arguing that there was no genuine mistake and that the amendment would be misleading. The court was tasked with determining whether the plaintiff had demonstrated a genuine mistake warranting an amendment and if such an amendment would not mislead the defendant.

The primary legal issue before the court was whether the plaintiff had established a genuine mistake in the name of a party listed in the writ, as required by the rules of procedure. Additionally, the court had to consider if the proposed amendment would be misleading to the defendant. The court examined the circumstances surrounding the alleged mistake and the impact of the amendment on the proceedings.

In delivering the judgment, the court noted that the plaintiff had failed to provide satisfactory evidence of a genuine mistake in the name of the party. Furthermore, the court held that the amendment, if allowed, would potentially mislead the defendant. Consequently, the court found that the plaintiff had not met the necessary criteria for an amendment under Rule 21 r 5(3) of the Rules of the Supreme Court 1971 (WA). The application to amend the writ was therefore dismissed.

The final order of the court was that the application to amend the name of a party in the writ was dismissed. The court concluded that the plaintiff had not demonstrated a genuine mistake or provided a compelling reason for the amendment that would not mislead the defendant.

Orders