David & Anor v Abdishou & Ors

[2007] NSWSC 822

CITATION:	David & Anor v Abdishou & Ors [2007] NSWSC 822 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	18 July 2007
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
EX TEMPORE JUDGMENT DATE:	18 July 2007
DECISION:	1. The amendments should be allowed; 2. No question of limitation arises; 3. The plaintiffs should pay half the costs of the defendants today.
CATCHWORDS:	defamation - amendment of statement of claim to extend dates of alleged publication - new causes of action out of time - whether amendment should be permitted - relationship of amendment to pleaded cause of action - leave granted
LEGISLATION CITED:	Civil Procedure Act 2005 s65
CASES CITED:	Battenburg v Union Club & Anor (unreported) NSWSC 11 August 2006
PARTIES:	Fred David (First Plaintiff) Suzy David (Second Plaintiff) Youeil Abdishou (First Defendant) Eddy Simon David (Second Defendant) Joseph Saliba Dadisho (Third Defendant) Charles Kouchou (Fourth Defendant) Fudor Manso (Fifth Defendant) Henrick Isaac (Seventh Defendant)
FILE NUMBER(S):	SC 20117/06
COUNSEL:	1st & 2nd Plaintiff: Mr C Dibb 1st, 2nd, 3rd and 5th Defendants: Mr R Weaver 7th Defendant: Mr A Dawson
SOLICITORS:	1st & 2nd Plaintiff: Hal Lawyers 1st, 2nd, 3rd and 5th Defendants: McMahons National Lawyers 7th Defendant: DLA Phillips Fox

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

WEDNESDAY 18 JULY 2007

20117/06 - FRED DAVID & ANOR v YOUEIL ABDISHOU & ORS

JUDGMENT ON APPLICATION TO AMEND FURTHER AMENDED STATEMENT OF CLAIM

1 HIS HONOUR: The plaintiff by a further amended statement of claim made the following allegations:

“2(a) The defendants circulated the petition at a meeting of members of the public, including members of the Assyrian community in Sydney, which they organised and conducted at the Assyrian Sports and Cultural Club at Fairfield Heights on the evening of 27 November 2005 (“the meeting”).
(b) Following the meeting, the defendants made copies of the petition available to members of [the] public, including members of the Assyrian community in Sydney, (further particulars of which are best known by the defendants and will be provided after discovery interrogatories in the present proceedings).
(c) The defendants forwarded copies of the petition to various persons in positions of authority in New South Wales and elsewhere in Australia, (further particulars of which are best known by the defendants and will be provided after discovery and interrogatories in the present proceedings).”

2 The plaintiff now seeks to amend those allegations by adding, after the date specified in paragraph 2, the words “and in the following two months”, and the following particulars of publication alleged against the first, second, third, fourth, fifth and seventh defendants.

“First, Second Third, Fourth and Fifth Defendants
(d) Each of First, Second, Third and Fifth Defendants was one of the authors of the petition.
(e) Each of First, Second, Third and Fifth Defendants agreed with other persons to have the petition read to the Meeting by the Fourth Defendant.
(f) The Fourth Defendant read the petition aloud in English to the Meeting.
(g) Each of First, Second, Third and Fifth Defendants distributed or helped others to distribute copies of the petition to persons at the Meeting.
(h) Each of First, Second, Third and Fifth Defendants urged persons at the Meeting to sign the petition.
(i) Each of First, Second, Third and Fifth Defendants encouraged persons at the Meeting to take copies of the petition away from the meeting and show them to other persons.
(j) Each of First, Second, Third and Fifth Defendants handed, showed, read or sent copies of the petition to other persons after the Meeting.
Seventh Defendant
(k) The Seventh Defendant wrote the words in the matter complained of, (or alternatively, the Seventh Defendant was one of the authors of those words.
(l) The Seventh Defendant agreed at meetings in October and November 2005 with one or more of the First to Fifth Defendants to publish matter substantially in the form of the matter complained of.
(m) The Seventh Defendant agreed with one or more of the First to Fifth Defendants to have the matter complained of read aloud at the Meeting on 27 November 2007 at the Assyrian Sports and Cultural Club in Fairfield.
(n) The Seventh Defendant urged people at the Meeting to sign the matter complained of.
(o) The Seventh Defendant suggested to persons at the Meeting that they should take copies of the matter complained of away from the Meeting, show them to other people and ask those people also to sign the matter complained of.”

3 The plaintiff submits that he is entitled to do so by virtue of s65 of the Supreme Court Civil Procedure Act, which is in the following terms, so far as is relevant:

“ 65 Amendment of originating process after expiry of limitation period

(cf SCR Part 20, rule 4; DCR Part 17, rule 4)
(1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings.
(2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as:
(a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or
(b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court’s opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or
(c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court’s opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process.
(3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced.
(4) This section does not limit the powers of the court under section 64.
(5) This section has effect despite anything to the contrary in the Limitation Act 1969.
(6) In this section, “ originating process ”, in relation to any proceedings, includes any pleading subsequently filed in the proceedings.”

4 It is trite that each publication of defamatory material is a separate and distinct cause of action. Nevertheless, as is evident by the unamended form of the statement of claim in the present case, allegations of wide publications to numerous persons generally described are frequently contained in the one allegation pleaded.

5 It will be seen that the particulars of publication (not proposed to be amended) specify three modes of publication: circulating the material complained of at a meeting that occurred on the evening of 27 November 2005; secondly, making copies of the petition available to members of the public following the meeting; and thirdly, forwarding copies of the petition to various persons in positions of authority. (There is also an allegation that the fourth defendant spoke in support of the petition at the meeting, but that is not material for present purposes).

6 It is perfectly obvious from the particulars that the plaintiff complained of the wide distribution of the petition initially by the defendants distributing them in the way specified on the date specified, but obviously also that there was a penumbra of recipients of the petition, which in the circumstances would likely to have been on-distributed or on-published by the persons with whom initial contact was made by the defendants. All this is unmistakably alleged in the present pleading.

7 The specification of the date as “on or about” comprehends, it is conceded, the few days following 27 November 2005, but clearly not as long as two months. What the plaintiff is alleging in lay terms is that the activities now sought to be litigated were the same kind of activities as previously particularised, but going on for a longer period. The matter complained of is the same, and the nature of the publication is the same.

8 The question is, as I see it, whether the allegation of additional or further publications constitute such a new cause or causes of action that “arise or arises from the same (or substantially the same) facts as those giving rise”, to the existing cause of action in the claim for relief.

9 As Nicholas J said in Battenburg v Union Club & Anor (Unreported) NSWSC 11 August 2006:

“To some extent the question [whether the new cause of action arises out of the same or substantially the same facts] is one of degree and impression. The approach to be taken should be with regard to a principle which is entrenched in the law of defamation, namely, that each publication of a defamatory matter constitutes a new and separate tort for which a plaintiff can sue, and gives rise to a separate cause of action ... “

10 His Honour regarded it as significant, amongst other things, that the publication in question before his Honour was alleged to have been made to the plaintiff’s solicitors and his staff and to one Mr Kerr and his staff. However, the new particulars of publication alleged that the claimed letter was sent to other clubs in Australia (than the Union Club) and overseas, including the Reform Club of London.

11 Here, the persons who received copies of the petition during the ensuing two months are persons in the same class as those specified in the present statement of claim. Moreover, the defamatory matter is identical, whereas in Battenburg the defamatory matter was different, although it was said to have been in substance of the same effect as that specified in the original statement of claim.

12 This is a question of fact and degree, but in this case I am satisfied that, insofar as the amendments do allege a new cause or new causes of action, they arise out of the same or substantially the same facts as the original cause or causes of action. It follows that the amendments should be allowed and it follows that no question of limitation arises.

13 I do not think any parties have done anything that would lead me to depart from the ordinary rule as to costs. In my view the plaintiffs should pay half the costs of the defendants today.

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06/08/2007 - Incorrect file number on coversheet. - Paragraph(s) n/a