COHEN -v- McEVOY [2003] WASCA 23

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 23
Court:	THE FULL COURT (WA)
Case No:	FUL:43/2002	Heard:	9 DECEMBER 2002
Coram:	ANDERSON J PARKER J OLSSON AUJ	Delivered:	7/03/03
No of pages:	4	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	BRUCE COHEN JUDY McEVOY
Catchwords:	Practice and procedure Appeals Defamation action Application after trial to file reply alleging express malice Prejudice Application refused
Legislation:	Nil
Case References:	Nil Bell v Lever Bros Ltd [1932] AC 161 Capital and Counties Bank v Henty (1880) 5 CPD 539 Cock v Hughes [2001] WASC 151 Geelong Building Society (in liq) v Encel [1996] 1 VR 594 Gerhold v Baker (1918) WN 368 Horrocks v Lowe (1975) AC 135 Howe & McColough v Lees (1910) 11 CLR 361 Jones v Littler (1841) 7M&W 423 Kiam v Neill [1996] EMLR 493 Marks v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) (1995) 14 WAR 360 O'Brien v Komesaroff (1982) 150 CLR 310 Paltara Pty Ltd v Dempster (1991) 6 WAR 85 Pinniger v John Fairfax (1979) 53 ALJR 691 Ronald v Harper (1910) 11 CLR 63 Sims v Wran [1984] 1 NSWLR 317 Toogood v Spyring (1834) 1 Cr M&R 181 Ward v Weeks (1830) 7 Bing 211 Winstanley v Bampton [1943] KB 319

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : COHEN -v- McEVOY [2003] WASCA 23 CORAM : ANDERSON J

PARKER J

OLSSON AUJ

HEARD : 9 DECEMBER 2002 DELIVERED : 7 MARCH 2003 FILE NO/S : FUL 43 of 2002 BETWEEN : BRUCE COHEN

Appellant

AND

JUDY McEVOY

Respondent

Catchwords:

Practice and procedure - Appeals - Defamation action - Application after trial to file reply alleging express malice - Prejudice - Application refused

Legislation:

Nil

Result:

Appeal dismissed

(Page 2)

Category: B

Representation:

Counsel:

Appellant : Mr R A Zilkens

Respondent : Ms F C E Davis

Solicitors:

Appellant : Zilkens & Co

Respondent : Phillips Fox

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

Nil

Case(s) also cited:

Bell v Lever Bros Ltd [1932] AC 161
Capital and Counties Bank v Henty (1880) 5 CPD 539
Cock v Hughes [2001] WASC 151
Geelong Building Society (in liq) v Encel [1996] 1 VR 594
Gerhold v Baker (1918) WN 368
Horrocks v Lowe (1975) AC 135
Howe & McColough v Lees (1910) 11 CLR 361
Jones v Littler (1841) 7M&W 423
Kiam v Neill [1996] EMLR 493
Marks v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) (1995) 14 WAR 360
O'Brien v Komesaroff (1982) 150 CLR 310
Paltara Pty Ltd v Dempster (1991) 6 WAR 85
Pinniger v John Fairfax (1979) 53 ALJR 691
Ronald v Harper (1910) 11 CLR 63
Sims v Wran [1984] 1 NSWLR 317
Toogood v Spyring (1834) 1 Cr M&R 181
Ward v Weeks (1830) 7 Bing 211
Winstanley v Bampton [1943] KB 319

(Page 3)

1

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 Cohen v McEvoy

Details

AGLC: Cohen v McEvoy [2003] WASCA 23
Case: [2003] WASCA 23
Decision Date: 7 MARCH 2003

CaseChat Overview and Summary

Cohen and McEvoy were involved in a defamation action before the Supreme Court of Victoria. Cohen sought to amend his statement of claim post-trial to allege express malice against McEvoy, which was not originally claimed. McEvoy opposed this application, arguing that allowing such an amendment would cause significant prejudice, particularly because the defamation action had been tried on the basis of implied malice.

The court was required to determine whether Cohen's application to file a reply alleging express malice should be permitted, and if such an amendment would unfairly prejudice McEvoy. The court considered the principles governing amendments to pleadings post-trial and the potential for prejudice to the opposing party.

The court held that allowing the amendment to include an allegation of express malice would result in unfairness and prejudice to McEvoy. It found that the defamation action had been tried on the basis of implied malice, and permitting an amendment to include an allegation of express malice would require McEvoy to defend a different case from the one that was actually tried. The court found that such a significant change would likely prejudice McEvoy's ability to mount an effective defence. Consequently, the court dismissed Cohen's application to file a reply alleging express malice.

As a result, the appeal was dismissed, and the decision of the trial judge to deny the application to amend the statement of claim was upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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