Culleton v Kershaw - [2016] WASC 334

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: CULLETON -v- KERSHAW [2016] WASC 334

CORAM: KENNETH MARTIN J

HEARD: ON THE PAPERS

DELIVERED : 14 OCTOBER 2016

FILE NO/S: CIV 1465 of 2016

BETWEEN: RODNEY NORMAN CULLETON
Plaintiff
AND
BRADLEY KERSHAW
First Defendant
CHRIS PETIT
Second First Defendant
TORI KIRK
Second Defendant
REBECCA FORD
Third Defendant
COURTNEY KETT
Fourth Defendant
MARK REGAN
Fifth Defendant
MAUREEN ADAMS
Sixth Defendant
GEMMA HADDRICK
Seventh Defendant
THERESE GILMORE
Eighth Defendant
YASMIN DUNBAR
Ninth Defendant
SHELLEY ORCHARD
Tenth Defendant
RORY McDOUGALL
Eleventh Defendant
JAMES MEDLEN
Twelfth Defendant
EMMA TAYLOR
Thirteenth Defendant
SHERYL WORRELL
Fourteenth Defendant
CARLEY THOMPSON
Fifteenth Defendant
PETER McGIVERN
Sixteenth Defendant
LYNN FRANKLIN
Seventeenth Defendant

Catchwords:

Application for leave to amend indorsement of claim on writ - Eighteen defendants - Application for leave opposed by four defendants - Additional causes of action by extra publications foreshadowed - Limitation of actions issues

Legislation:

Defamation Act 2005 (WA)
Limitation Act 2005 (WA)

Result:

Leave refused at this time

Category: B

Representation:

Counsel:

Plaintiff:     No appearance
First Defendant             :     No appearance
Second First Defendant :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     No appearance
Fourth Defendant          :     No appearance
Fifth Defendant            :     No appearance
Sixth Defendant            :     No appearance
Seventh Defendant        :     No appearance
Eighth Defendant          :     No appearance
Ninth Defendant           :     No appearance
Tenth Defendant           :     No appearance
Eleventh Defendant      :     No appearance
Twelfth Defendant        :     No appearance
Thirteenth Defendant     :     No appearance
Fourteenth Defendant     :     No appearance
Fifteenth Defendant      :     No appearance
Sixteenth Defendant      :     No appearance
Seventeenth Defendant :     No appearance

Solicitors:

Plaintiff:     Boutique Defamation Lawyers
First Defendant             :     No appearance
Second First Defendant :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     Mony de Kerloy Barristers and Solicitors
Fourth Defendant          :     No appearance
Fifth Defendant            :     Mony de Kerloy Barristers and Solicitors
Sixth Defendant            :     No appearance
Seventh Defendant        :     Mony de Kerloy Barristers and Solicitors
Eighth Defendant          :     No appearance
Ninth Defendant           :     No appearance
Tenth Defendant           :     Mony de Kerloy Barristers and Solicitors
Eleventh Defendant      :     No appearance
Twelfth Defendant        :     No appearance
Thirteenth Defendant     :     No appearance
Fourteenth Defendant     :     No appearance
Fifteenth Defendant      :     No appearance
Sixteenth Defendant      :     No appearance
Seventeenth Defendant :     No appearance

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

Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575
Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
Harris v Knell [2016] WASCA 11
Morgan v Banning (1999) 20 WAR 474
Rossen v Airey [2011] WASC 22
Sims v Jooste [No 2] [2016] WASCA 83
Wookey v Quigley [No 2] [2010] WASC 209

KENNETH MARTIN J: The plaintiff, then acting in person, filed a writ in this court on 22 March 2016, naming Bradley Kershaw as the first defendant along with some further 17 individuals as defendants to his defamation claims. The position in relation to service of the writ upon defendants other than the as‑named third, fifth, seventh and tenth defendants, is uncertain. No affidavit of service of the writ has been filed. Those four defendants I mentioned are now legally represented.
Lest it confuse, I should note that the plaintiff's writ identified Mr Kershaw as 'Defendant' and then the next named defendant (a Mr Chris Petit) as 'First Defendant'. For the purposes of the court records, these two defendants were identified by the court registry as the first defendant and the second first defendant respectively, although the two parties would not appear, prima facie, to be related.
Since the indorsement to the plaintiff's writ makes direct reference to a claim for damages for defamation and injury to the plaintiff's reputation, the matter was referred to me for specialist case management in the CMC (Commercial and Managed Cases) List ‑ where all defamation actions are managed: see Rules of the Supreme Court 1971 (WA) (RSC) O 4A r 11.
The founding indorsement upon the plaintiff's writ provided in these brief (uncorrected) terms as against 18 defendants:
The plaintiff's claim is for non‑economic loss or damages for defamation and injury to his reputation, pursuant to s 35(1) of the Defamation Act, 2005 (WA) for $250,000 (the Defamation). It is caused by the Defendant's written publication on the Australian Sixty Minutes Programme of Channel 9 Face Book Account dated 14.4.2015 at 9:52 am (WA Time) (The Defamatory Publication).
The text of the Defamatory Publication is as follows by the first defendant and Ors as attached join supporting affidavit.
The indorsement presents as incoherent in its terms. First, it fails to meet the requirements of RSC O 6 r 1 and r 2. For an action in defamation (libel), it fails to meet the minimum requirements that 'the indorsement must state sufficient particulars to enable the publications in respect of which the action is brought to be identified'.
Eighteen defendants confronted with this indorsement would have little insight if any about what it was they had published which might arguably be said to be defamatory of the plaintiff, save only for the observed reference made to an 'Australian Sixty Minutes Programme of Channel 9 Face Book Account'.
Second, the wholly misconceived notion of the text of defamatory publications being found attached to a 'join [sic] supporting affidavit' only renders matters even less acceptable from an overall coherency perspective. There was also, I note, no annexure or any affidavit pertinent to the original indorsement filed at the court.
So then, all the original indorsement tells the eighteen defendants is that their 'written publication', said to be the defamatory publication, happened upon a 'Channel 9 Face Book Account'.
The ostensible conceptual curiosity in a plaintiff holding discreet actions under the tort of defamation as against 18 different defendants all predicated upon what was published on the 'Channel 9 Face Book Account' on 14 April 2015 at 9.52 am, is intriguing, albeit very well shrouded.

Procedural developments

There was a directions hearing scheduled before me on 15 June 2016. At that time, the plaintiff appeared in person. For the defendants Mr Mark Mony de Kerloy appeared as counsel to represent only the then as‑named third defendant, Ms Rebecca Ford, the then as‑named fifth defendant Mr Mark Regan, the then as‑named seventh defendant Ms Gemma Haddrick and the then as‑named tenth defendant Ms Shelley Orchard.
The position in respect of service of the plaintiff's writ upon the other defendants has not been explained. That remains the position now.
At that directions hearing I heard submissions from Mr Culleton in person and from Mr Mony de Kerloy for the four participant defendants. I then issued directions in the terms seen below, directed essentially at some attempt to remedy what had then been identified as the deficiencies highlighted above in the original indorsement on the writ. I directed:
1.By 4.00 pm on Friday 15 July 2016, the plaintiff is to file and serve a minute of proposed amended indorsement of claim in respect of which the plaintiff seeks leave to amend.
2.The matter is adjourned to await the filing and service of a minute of proposed amended indorsement of claim and then for the court to make further directions.
About a month after that directions hearing, on 14 July 2016, a Melbourne firm of legal practitioners, Boutique Defamation Lawyers, filed a notice of change of representation, announcing they now acted on behalf of the plaintiff from that point.
The same day a document styled 'minute of proposed amended endorsement [sic] of claim' was filed at court on behalf of the plaintiff by Boutique Defamation Lawyers. The document is dated 13 July 2016. It was filed via e‑lodgement at the court registry on 14 July 2016.
The minute is in lengthy terms. Its schedule seeks to identify Ms Ford as the fourth (not third) defendant, Mr Regan as the sixth (not fifth) defendant, Ms Haddrick as the eighth (not seventh) defendant and Ms Orchard as the eleventh (not tenth) defendant.
Overall, the same 18 defendants are seen named on this minute.

Legal principles: defamatory publications over the internet

I digress at this point, simply to observe that a cause of action in defamation, as was explained by Martin CJ delivering the reasons of the Court of Appeal in Sims v Jooste [No 2] [2016] WASCA 83, requires a publication of the material complained of and that the term 'publication' carries at least two legal meanings under defamation law.
In the case of material that is uploaded to the internet, it is necessary to show that the material has been downloaded (or accessed) somewhere within the jurisdiction of the Supreme Court of Western Australia. That point was established in Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575, which is explained in Sims v Jooste [No 2]. The fact that material is uploaded to the internet somewhere in the world beyond Australia is not to the point. There will be a cause of action for a plaintiff in defamation in Australia, if the material is proved to have been downloaded and read within an Australian jurisdiction by someone other than the plaintiff.
But the fact that a would‑be defamation plaintiff has themselves downloaded (or accessed) and then viewed the defamatory internet material about them in Australia, is not enough. The tort of defamation provides a remedy for damage to someone's public reputation or good character. In order then for there to be an arguable cause of action held by a plaintiff as regards an injury to their own character and reputation, it is necessary for the problematic material to have been read by, and thereby relevantly published to, someone other than the plaintiff who is complaining.
It has already been seen that a publication date of 14 April 2015 is visible on the original indorsement. But that alleged publication date is not necessarily determinative as to when a third person(s) may have downloaded or viewed the internet material complained of. Hence, that first date will not necessarily reveal when a cause of action has arisen in defamation, in respect of the particular publication complained of, as against a particular defendant. A cause of action in defamation arises upon the internet material being downloaded (or accessed) and read by at least one third person in Australia ‑ in the legal sense of the word 'published'.
It may be observed here, however, in terms of an approximate indication of a time around which a cause of action in defamation might have arisen (such as for the purpose of assessing limitation of action arguments), that the time at which the material complained of is first posted upon the internet presents to be the earliest time at which the material would become capable of being accessed by a third person over the internet. Evidence may reveal that the problematic material might only have been accessed and viewed by a third person at some later time ‑ being at a date after the material was first posted to the internet.

Minute of proposed amended indorsement of claim filed 14 July 2016

If a plaintiff is seeking to add additional causes of action to an existing indorsement to their writ, then such an augmentation necessarily requires the leave of the court: see RSC O 21 r 1(3)(b), referring to the addition or substitution of a new cause of action. It is plain from the terms of the Defamation Act 2005 (WA) that a single cause of action arises from a publication of defamatory matter about a person: s 8.
Here, an early question that now presents is whether or not this plaintiff is actually seeking to add additional or extra allegedly defamatory publications to his indorsement of claim. That is, are there extra publications sought to be added above and beyond the cause(s) of action raised under his original publication grievance concerning what was allegedly published about him on a 'Channel 9 Face Book Account'? If so, then leave is needed. That is because each new or additional defamatory publication complained about is an additional cause of action that is being added to the scope of the existing writ's ambit.

The proposed new indorsement under the minute filed 14 July 2016

The proposed amended indorsement of claim to the plaintiff's writ strikes through all the original indorsement except for the first sentence. A new commencing paragraph (the first of some 25 paragraphs spread across nine pages in a closely typed minute of proposed indorsement) now reads in terms:
The plaintiff's claim is for non‑economic loss or damages for defamation and injury to his reputation, pursuant s 35(1) of the Defamation Act, 2005 (WA). The multiple defendants' engaged in publishing defamatory material about the plaintiff online by publishing on the Internet comments primarily on the Facebook service ('Facebook') in or around April 2015 through to August 2015. The plaintiff is a public figure and has incurred ridicule and has been gravely injured in his credit, character and reputation via the defamatory published comments whereby he has been brought into public hatred, scandal, odium and contempt and has been lowered in the estimation of the right thinking members of the community and has been injured by way of his occupation and calling; and has suffered distress and embarrassment.
Following the paragraph set out above, the as proposed amended indorsement continues on to display many discreet further paragraphs - each one directed at one of the 18 different defendants. Each of these paragraphs contains particulars identifying what are distinct words ‑ apparently complained about by the plaintiff at different dates, as against each of the 18 different defendants.
Many of these new particulars make a reference to an expressed grievance of the plaintiff over allegedly defamatory comments posted upon the internet via 'Facebook' (by invoking a definition of 'Facebook' as seen above in par 1 of the minute and which is there seen defined, very blandly, as 'the Facebook service').
Specifically, for each of the four now represented defendants, they are respectively addressed by pars 5, 7, 9 and 12 of the minute of proposed amended indorsement.
Towards Ms Ford, she is, by par 5, proposed to be made the subject of an amendment concerning her exposures as a defendant in these terms:
The plaintiff claims damages from the fourth named defendant Rebecca Ford as to the damage to his reputation when the fourth named defendant published defamatory comments posted on the 11^th April 2015 and the 5^th August 2015 on the Internet via Facebook.
Particulars
11 April 2015 - 'All I can say is there are two sides to every story and 60 minutes should have investigated into allegations against one of those farmers ...'
5 August - 'Oh Chris, if only they knew moe [sic] about this man' - posted on the GWN7 facebook page.
It is not necessary for me to refer to the terms of pars 7, 9 and 12 concerning the other legally represented defendants, namely Mr Regan, Ms Haddrick and Ms Orchard (other than for me to note that Mr Regan is challenged by reference in par 7 to alleged published defamatory comments posted on 12 April 2015, 'on the Internet via Facebook', but with the particulars then identifying a 'Burdekin Canefarming Community Facebook page').
As to precisely where upon the social media realm of Facebook the alleged defamatory comments were posted, that question is left rather opaque at points by the minute.
As we have seen now, the original indorsement to the writ only says that the relevant 'written publication' was upon the 'Australian Sixty Minutes Programme of Channel 9 Face Book Account dated 14.4.2015'. That expression of details of publication as seen in the original indorsement ‑ deficient or inadequate as it might be in terms of presenting sufficient particularity for the purposes of RSC O 6 r 2 ‑ nonetheless operated some way towards making an identification of a precise internet publication containing the (then) allegedly defamatory matter complained of. That original expression of detail as to publication must be said to in some way to limit the identity of the publication complained about to the written material(s) somehow associated with, or relating to, a Facebook account (or page or site) associated with Channel 9 and its Australian Sixty Minutes programme. That initial circumscription by the plaintiff as to the ambit of written material upon the internet is significant, as regards assessing the now proposed amendment, at par 1 of the minute. By the amendments proposed by the minute the plaintiff would now seek to shift position to identify a publication (or publications) by reference to 'publishing on the Internet comments primarily on the Facebook Service ("Facebook") in or around April 2015 through to August 2015'.
Relevantly, the minute of amended indorsement refers just to 'Facebook' (as defined by par 1), albeit with two exceptions. As regards Ms Ford, the proposed par 5 particulars now display as seen, a proposed reference to an alleged post on a 'GWN 7 facebook page', of 5 August 2015. That goes beyond and is inconsistent with the original indorsement, referring as we saw only to a 'Channel 9 Face Book Account'. The proposed change displays what looks now to be a distinctly different publication complained of. To complain of a fresh publication (ie a new cause of action), leave is first needed to allow such a change.
The same observations may be made as regards the particulars to par 7 of the minute, displaying reference, as regards Mr Regan, to a post of 12 April 2015 upon the 'Burdekin Canefarming Community Facebook page (it seems)'. That also looks to be a fresh publication to be complained about (beyond a Channel 9‑linked publication).
It may be observed, generally, in respect of each of the four represented defendants and what is proposed to be said about them by this minute, that the residual as proposed amendments as to publication(s) are left merely to be alleged to have been posted generically ‑ ie on the internet via Facebook ‑ but without any further mantle of particularity as to actually where on the internet (or, specifically, on Facebook) the publication(s) occurred, with the partial exception of still obscure references to a 'GWN 7 facebook page' and the above Burdekin Canefarming Community Facebook page'.
Additionally, the proposed amendments go on to identify alleged defamatory publications on dates other than of 14 April 2015 (being two in the case of Mr Ford (on 11 April and 5 August 2015); three in the case of Mr Regan (with each identified as being of 12 April 2015); two in respect of Ms Haddrick (with each said to have been of 26 April 2015); and only one publication in respect of Ms Orchard (which is identified as being of 13 April 2015). The dates for each post or comment now sought to be complained about under this minute look to be inconsistent with the 14 April 2015 date originally complained of, by reference to a publication on a 'Channel 9 Face Book Account' dated 14 April 2015.
That date inconsistency for the represented defendants, may be contrasted with other new particulars proposed to be given in respect of certain other (currently unrepresented) defendants, as identified under this proposed minute of amended indorsement. For instance, I note what is to be said towards a tenth named defendant, Ms Dunbar, where 'Facebook' posts of 14 April 2015 are specifically complained of (along with another subsequent post). That date of 14 April 2015 does seem to reconcile with what is the date seen on the original indorsement.

There could be other circumstances in which an indorsement upon a writ can identify a defamatory publication in terms other than by a date of the publication ‑ with that description being specific enough to properly meet and comply with the rules of court (RSC O 6 r 2) and so to enable the publication to be adequately identified. The terms of the original indorsement seen here attempted the identification of the relevant publication by reference to a Sixty Minutes Channel 9 Facebook account and a date of 14 April 2015. The original indorsement does not otherwise set out the terms of what was being complained about as defamatory. I observe that the present facts do not display, in key respects, a scenario of a minor correction or adjustment of a time reference, as was seen under the facts of Harris v Knell [2016] WASCA 11.
While it may be said that the date or time at which a communication occurred is a particular of a publication alleged (and not a necessary element of the cause of action), that does not mean that wholesale alteration of the date of publication can properly be sought without leave, in the context of a proposed amendment of an indorsement of claim, such that the alteration(s) would appear to then extend to capture distinct and separate publications.
Consequently, as regards the four defendants who are represented, it clearly enough presents that the publications now specifically identified against them under the minute (as Facebook posts) and thus sought to be raised and complained about, are distinct and new publications - that is, fresh publications made over the internet different to the publication as was originally complained about, upon a 'Channel 9 Face Book Account' on 14 April 2015. Accordingly, the plaintiff is seeking to ventilate new and additional causes of action in respect of which leave is required as regards the represented defendants.

The defendants' submissions and proposed orders of 1 August 2016

Having received the minute of proposed amended indorsement of 13 July 2016 from the plaintiff's newly appointed Melbourne‑based lawyers on 14 July 2016, I then directed administratively that the four represented defendants have until 2 August 2016 to file and serve any application (by minute of proposed orders and written submissions) in way of any opposition from them to the plaintiff having leave to amend his writ in the terms of the minute of proposed amended indorsement of claim. I also issued further directions in respect of what would follow, absent opposition.
The four defendants, through their legal representative, then proceeded to file a minute of 1 August 2016, opposing the proposed amendments concerning them under the plaintiff's minute.
By their minute of proposed orders of 1 August 2016, the represented defendants seek orders, in terms:
1.The plaintiff not have leave to file the Proposed Minute of Amended Indorsement of Claim dated 13 July 2016 and the Plaintiff's Indorsement of Claim dated 22 March 2016 be struck out with respect to the Third, Fifth, Seventh and Tenth Defendants;
2.In the alternative, paragraphs 5, 7, 9 and 12 of the Proposed Minute of Amended Indorsement of Claim dated 13 July 2016 be struck out;
3.The Plaintiff's claim against the Third, Fifth, Seventh and Tenth Defendants be dismissed; and
4.The Plaintiff pay each of the Third, Fifth, Seventh, and Tenth Defendants' costs of the action to be taxed if not agreed.
The orders as sought by the represented defendants have been supported by written submissions contemporaneously filed supporting those proposed orders.
The defendants' written submissions raise more asserted deficiencies in the original indorsement. They point out, correctly, that it is not clear which of the defendants, if any, were jointly or individually alleged to have been responsible for a publication on the Channel 9 Facebook account of 14 April 2015 at 9.52 am. That misconception, associated with the plaintiff's reference to a supporting affidavit referred to by the indorsement ‑ but which the third, fifth, seventh or tenth defendants all say they never received ‑ is highlighted.
The deficiencies in the original indorsement, as regards all defendants, are very apparent. There has really been no serious effort made to defend the original indorsement other than to point out that the plaintiff is not a lawyer and was acting in person as a self‑represented litigant. That observation provides insight to the problems that manifest - but is no excuse.
The real question is whether what is the initially defective position is remedied, or will be sufficiently redressed, by what is now proposed by the plaintiff under the minute of amended indorsement?
Towards that issue the represented defendants say 'no' and first point out that the changes add new causes of action 'by pleading further publications which [the plaintiff] has alleged were defamatory' (par 11 of the represented defendants' written submissions of 1 August 2016). As already seen, that is plainly the case. But a distilled question then emerges: should there be leave to the plaintiff to allow what the plaintiff proposes by the minute at this stage?
As regards Ms Ford, a problematic reference to a post on the GWN 7 Facebook page of 5 August 2015, is identified. So also is the problematic reference to Mr Regan concerning a 12 April 2015 publication on a Burdekin Canefarming Community Facebook page, along with the accompanying parenthetical notation made by the plaintiff '(it seems)' ‑ whatever that is to convey.
The represented defendants submit, as would appear obvious, that none of the publications now sought to be raised against them by the minute of proposed amended indorsement, is said to be a posting that took place on 14 April 2015 (at 9.52 am, or otherwise). The represented defendants' submissions also point out that neither were any of them published on 'the Sixty Minutes Programme of Channel 9 Face Book Account' (par 13).
Next, the represented defendants contend that almost all of the new publications now seen as being sought to be introduced under the minute of proposed amended indorsement concerning them, if allowed, can be assessed as being statute barred ‑ under a one‑year limitation period as is provided under s 15 of the Limitation Act 2005 (WA) (although the defendants' submissions at par 17 err in referring at this point to the Defamation Act). Clearly this was intended to refer to the Limitation Act ‑ I proceed to evaluate the defendants' submissions on that basis.

The minute of proposed amended indorsement: limitation of action considerations

The four defendants' limitation of action submissions are presumably made by reference to calculating back a period of 12 months from the date of the filing at court of the minute of proposed amended indorsement of claim - filed on 14 July 2016.
Assuming then, for argument's sake, an outer limit cut‑off date that is 12 months before that, all but one of the as now identified and proposed defamatory publications concerning the four represented defendants ‑ are alleged to have happened well before 14 July 2015. That is so, save only for a post of 5 August 2015, said to be upon a GWN Facebook page, as is proposed to be complained of in respect of Ms Ford. That was the alleged post on the GWN 7 Facebook page of words 'Oh Chris, if only they knew moe [sic] about this man'.
It is possible of course, as the four defendants do recognise in their submissions, for an extension of time to be allowed, going beyond the 12 months initial cut‑off period upon a basis of such an extension being applied for and obtained, in accord with s 40 of the Limitation Act. However, the legal threshold to be surmounted in respect of obtaining an extension beyond 12 months to an outward period of three years prior to a defamatory publication complained of, is rigorous. I considered those limitation and extension considerations in Wookey v Quigley [No 2] [2010] WASC 209 [27].
The defendants' submissions correctly point out, as was discussed by Le Miere J in Rossen v Airey [2011] WASC 22, that the material part of the cause of action in defamation is the publication of the matter complained about. His Honour had said:
Publication to one person may give rise to different issues than publication to another person. Different defences, such as that of qualified privilege, may apply. The publication of a letter to one person cannot be characterised as even substantially the same fact as the publication of the same letter to a different person [13].
That decision is raised in a context of the defendants' anticipation that perhaps the plaintiff may seek to rely (as indeed the subsequent written submissions filed for him do) upon RSC O 21 r 5, to permit an amendment, after the expiry of any relevant period of limitation: O 21 r 5(2). However, it is clear that what is merely a rule of court under O 21 r 5(2) cannot rise higher than, or detract from, the express rights and obligations provided for under the terms of a statute which governs a particular situation. For the present case, the situation is expressly governed by s 15 and s 40 of the Limitation Act. Consequently, O 21 r 5 will not circumvent or detract from the holding of any substantive limitation of action rights conferred by those legislative provisions favouring these defendants if they are held: Morgan v Banning (1999) 20 WAR 474; Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431. The position may be distinguishable if there were some linkage shown to the 'Channel 9 Face Book Account' publication as is complained about on the original indorsement to the writ - say by some further detail or augmentation to that publication being made. But that is not apparent to me, presently. Wholly fresh publications and subject matter advancing new causes of action present to me at this time, as to what is sought to be added by this plaintiff.

Plaintiff's written submissions

There was, for a time, no response by way of responsive material from the plaintiff or his new legal advisors to the four represented defendants' 1 August 2016 written submissions. My associate then wrote to Boutique Defamation Lawyers on 9 September 2016, indicating that I would allow the plaintiff until 4.00 pm on Friday, 16 September 2016 to file any written response and that I would then determine whether there should be a hearing, or whether I would determine the plaintiff's application seeking leave to amend on the papers. At 1.50 pm on Friday, 16 September 2016, I received written submissions from his legal representatives.

Determination

In light of the materials received from the parties, and the issues presenting, I have dealt with the plaintiff's application for leave to amend his writ on the papers.
In the prevailing opposed circumstances, I am not presently inclined to grant the plaintiff leave to amend in accord with the current minute of proposed amended writ, by reference to the terms of that amended indorsement. I reach that view for a number of reasons. First, it is clear that the proposed amendments, if allowed, inject new and distinct causes of action to the existing litigation, at least as regards the four defendants currently represented. Second, in consequence, leave to amend in those terms is required. Third, save in relation to what is proposed to be said as regards Ms Ford concerning one 5 August 2015 publication on the GWN 7 Facebook page, all the other proposed amendments look to me to be publications (if downloaded or viewed at or close to those dates) that prima facie fall outside a 12 month limitation window as is imposed under s 15 of the Limitation Act (ie to lie back within a timeframe prior to 14 July 2015). Accordingly, for the plaintiff to be within permissible time to sue he may need, if he can, to avail himself of extension provisions in s 40 of the Limitation Act, in order to pursue what present otherwise to be time barred causes of action.
As regards the one new publication of 5 August 2015 concerning Ms Ford, that is also a new cause of action and it also requires leave. As the plaintiff has not yet filed a statement of claim, what might be the allegedly pejorative imputation(s) of a defamatory nature that is (or are) said to emerge out of the bland words of that rather brief post, have not yet been formulated by the plaintiff. I am presently left in some doubt over whether that could be done as regards any imputation(s) somehow arising out of those brief and ostensibly prefatory words which look to go nowhere in the end and ultimately seem to lack an underlying subject matter ‑ the words 'knew mo[r]e' raising the obvious question: knew more about what? Probably not, I infer, 'more' about the plaintiff's fishing, farming or dancing exploits. The difficulty is such words look to be open to an almost unlimited scope - and not necessarily to be pejorative.
From an overall case management and resourcing perspective, balancing proportionality and cost considerations at this time, the formulation of an arguably defamatory imputation out of the words should be demonstrated at an early point, for me to be satisfied that there is at least some arguable basis in allowing the plaintiff to have leave to go any further down the proposed course that he seeks in respect of that posting by Ms Ford at this time.
The written submissions filed on the part of the plaintiff make reference to four other potential alternative applications to amend the minute (pars 28, 29, 30 and 31) in differing ways which are premised upon various outcomes upon this application for leave.
In all the circumstances, particularly where the defendants' legal representative has not had an opportunity to consider and respond to those rather diverse alternatives mentioned in the plaintiff's written submissions, I will need to hear arguments from counsel upon what are the still unresolved issues as to the alternatives, before deciding upon any of them, or upon another course.
Consequently, I will need to hear the parties at a short hearing to be fixed in liaison with the parties' legal representatives in due course. The costs of this application, heard on the papers, should be reserved until then.