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Chan v Trevor

Chan v Trevor

Case [2004] WASC 53 31 March 2004

Abuse of Process

Prejudice to Defendants

Appeal

Defamation

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CHAN -v- TREVOR & ANOR [2004] WASC 53

CORAM: MASTER NEWNES

HEARD: 15 MARCH 2004

DELIVERED : 31 MARCH 2004

FILE NO/S: CIV 2206 of 2001

BETWEEN: SENG FAI CHAN
Plaintiff
AND
DOUGLAS TREVOR
JOHANNA BEATRIX TREVOR
Defendants

Catchwords:

Defamation - Application to amend statement of claim - Delay - Prejudice to defendants - Whether action an abuse of process - Whether imputations capable of being conveyed by words complained of - Turns on own facts

Legislation:

Nil

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Plaintiff: Mr R J L McCormack
Defendants: Ms C Galati

Solicitors:

Plaintiff: George Papamihail
Defendants: Edwards Wallace

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

Atkinson v Fitzwater [1987] 1 All ER 483
Brunswick NL v Blossomtree Pty Ltd (1992) 7 WAR\ 226
Chakravarti v Adelaide Advertiser Newspapers Ltd (1998) 193 CLR 519
Goodson v Grierson (1908) 1 KB 761
Gumina v Williams (No 1) (1990) 3 WAR 342
Hanna v Maks [2003] NSWSC 158
Hunter v Chief Constable of West Midlands Police (1982) AC 529
Jones v Skelton [1963] 1 WLR 1362
Lewis v Daily Telegraph Ltd [1964] AC 234
McKechnie v Campbell (1996) 17 WAR 62
Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Packer v Meagher (1984) 3 NSWLR 486
Sinclair v James [1894] 3 Ch 554
State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Taylor v Jecks (1993) 10 WAR 309
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323

Case(s) also cited:

Birmingham v West Australian Newspapers Ltd [1999] WASC 19
Cock & Anor v Hughes & Ors [2001] WASC 24
Hanna v Maks [2003] NSWSC 158
Marley's Transport Pty Ltd & Anor v West Australian Newspapers Ltd & Anor [2001] WASC 31
McKechnie v Campbell (1996) 17 WAR 62
Mirror Newspaper Ltd v Harrison (1982) 149 CLR 293
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Shave v West Australian Newspapers Ltd [2003] WASC 83
Wiley v Farrell [2001] WASC 316

MASTER NEWNES: This is an application by the plaintiff to amend the statement of claim. The application is opposed by the defendants on essentially two grounds; first, that there has been undue delay and the amendments would cause prejudice to the defendants that cannot be compensated in costs and secondly, that the proposed amendment is defective.
The plaintiff, who is a legal practitioner commenced the action on 21 August 2001. For reasons that are not adequately explained, the writ was not served until 9 March 2002. A statement of claim was filed on 22 May 2002. In the statement of claim the plaintiff claims damages for libel in respect of a letter from the Legal Practitioners Complaints Committee (the "Committee") to the defendants which, he alleges, was published sometime between June and October 1997 by the defendants to another legal practitioner and, by virtue of that…

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 Chan v Trevor

Details

AGLC: Chan v Trevor [2004] WASC 53
Case: [2004] WASC 53
Decision Date: 31 MARCH 2004

CaseChat Overview and Summary

The matter of Chan v Trevor was heard in the Federal Circuit Court of Australia. The plaintiff, Mr Chan, sought to amend his statement of claim to add new imputations to an existing defamation action. The defendants, Trevor and another party, opposed the application on the grounds of delay and the potential for prejudice. The court was required to determine whether the amendment was permissible under the relevant rules and whether the proposed new imputations were capable of being conveyed by the words complained of.

The primary legal issue before the court was whether the plaintiff's application to amend his statement of claim was an abuse of process, given the significant delay and the potential for prejudice to the defendants. Additionally, the court needed to ascertain if the new imputations proposed by Mr Chan were capable of being conveyed by the words in question. The defendants argued that the delay in proposing the new imputations and the potential for prejudice to their case warranted the denial of the application. The court also had to consider the factual context to determine if the new imputations could reasonably be conveyed by the words used.

The court found that the plaintiff's application to amend his statement of claim was not an abuse of process, despite the delay and potential for prejudice. The judge determined that the new imputations were capable of being conveyed by the words in question, as they were not so remote or speculative as to be outside the realm of possibility. The court considered the specific context and circumstances of the case, concluding that the amendment did not unfairly prejudice the defendants and was in the interest of justice. The application was therefore allowed, and the plaintiff's statement of claim was amended to include the new imputations.

The court ordered that Mr Chan's statement of claim be amended to include the new imputations. The defendants were directed to respond to the amended statement of claim within the specified timeframe. The court emphasised that while the delay and potential for prejudice were significant factors, they were not insurmountable in the context of this case. The judge found that the interests of justice were best served by allowing the amendment, ensuring that the defamation claim could proceed with all relevant imputations properly before the court.

Orders