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,…

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 Culleton v Kershaw

Details

AGLC: Culleton v Kershaw [2016] WASC 334
Case: [2016] WASC 334
Decision Date: 14 OCTOBER 2016

CaseChat Overview and Summary

The matter of Culleton v Kershaw was heard in the Federal Court of Australia, where the applicant, Culleton, sought leave to amend an indorsement of a claim on a writ. The writ initially named eighteen defendants, and the applicant aimed to include additional causes of action related to further publications. Four of the defendants opposed the application, raising concerns about limitation periods for the new claims. The primary legal issue was whether the applicant was entitled to add these extra causes of action, considering the potential impact on the defendants' rights and the limitation periods for such claims.

The court considered the relevant rules governing amendments to pleadings and the principles surrounding limitation periods. The court acknowledged that amendments to pleadings are generally allowed to ensure just resolution of the real issues in the dispute, but such amendments must not prejudice the defendants. The court also noted that limitation periods could potentially bar claims if not commenced within the prescribed time frames. The court examined whether the additional claims related back to the original cause of action and whether the defendants would suffer any prejudice by the proposed amendments. After careful consideration, the court found that the proposed amendments did not prejudice the defendants and that the limitation periods had not expired for the new claims.

Ultimately, the court granted the application for leave to amend, allowing the applicant to include the additional causes of action related to the extra publications. The court determined that the amendments did not prejudice the defendants and were within the limitation periods. The court emphasised the importance of ensuring that amendments to pleadings do not unfairly disadvantage the opposing party and that limitation periods are respected to maintain the integrity of the legal process.

Orders