Griffith v JOHN Fairfax Publications Pty Ltd - [2002] NSWSC 806

CITATION: GRIFFITH & ORS v JOHN FAIRFAX PUBLICATIONS PTY LTD & ORS [2002] NSWSC 806

FILE NUMBER(S): SC 20301 OF 2001

HEARING DATE(S): 2 September 2002

JUDGMENT DATE: 11 September 2002

PARTIES :

JEREMY NORMAN GRIFFITH
(First Plaintiff)
FOUNDATION FOR HUMANITY'S ADULTHOOD
(ACN 003 930 023)
(Second Plaintiff)
TIMOTHY JOHN MACARTNEY-SNAPE
(Third Plaintiff)
THE PERSONS NAMED IN SCHEDULE "A"
(Fourth Plaintiffs)
v
JOHN FAIRFAX PUBLICATIONS Pty Ltd
(ACN 003 357 720)
(First Defendant)
DAVID MILLIKAN
(Second Defendant)
WILLIAM ANTHONY McCLELLAND (TRADING AS "CULTAWARE")
(Third Defendant)

JUDGMENT OF: Levine J

COUNSEL :
K Smark
(Plaintiffs)
P Menadue
(Defendants))

SOLICITORS:
Schweizer & Co
(Plaintiffs)
Freehills
(First and Scond Defendants)

CATCHWORDS: leave to amend - "strike in" of whole matter complained of - "fresh" imputations - "out of time" as causes of action - - SCR Pt 20 r 4(5)

LEGISLATION CITED: Defamation Act 1974
SCR Pt 20 r 4(5)

CASES CITED: Burke v TCN Channel Nine Pty Ltd, Levine J, unreported, 16 December 1994
Gill v Eatts & Ors (1999) Australia Torts Rep 81-529
Gordon v Amalgamated Television Services Pty Ltd & Anor (1980) 2 NSWLR 410
Keating v Newcastle Newspapers Pty Ltd [2000] NSWSC 726
McCarey v Associated Newspapers Ltd (1965) 2 QB 86
McGee v Yeomans [1977] 1 NSWLR 273
Murphy v Nationwide News, Levine J, unreported, 1 April 1993
Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd & Ors (1971) 1 NSWLR 472

DECISION: See paragraph 12

DLJ: 1

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMAtiON LIST

JUSTICE DAVID LEVINE

WEDNESDAY 11 SEPTEMBER 2002

20301 OF 2001

JEREMY NORMAN GRIFFITH
(First Plaintiff)

FOUNDATION FOR HUMANITY’S ADULTHOOD
(ACN 003 930 023)
(Second Plaintiff)

TIMOTHY JOHN MACARTNEY-SNAPE
(Third Plaintiff)

THE PERSONS NAMED IN SCHEDULE “A”
(Fourth Plaintiffs)

v

JOHN FAIRFAX PUBLICATIONS Pty Ltd
(ACN 003 357 720)
(First Defendant)

DAVID MILLIKAN
(Second Defendant)

WILLIAM ANTHONY McCLELLAND (TRADING AS “CULTAWARE”)
(Third Defendant)

“strike in”

“fresh”

“out of time”

1 By Notice of Motion filed on 14 August 2002 the plaintiffs seek to amend the Statement of Claim. The application was prosecuted as against the third defendant. The proposed Amended Statement of Claim is annexed to an affidavit of Michael Kobras, solicitor for the plaintiffs, sworn 14 August 2002.

2 The purpose of the application is to have pleaded by the plaintiffs in relation to what is described as the second matter complained of, the whole of the Newsletter published in or about August 1995 by Mr McClelland. In the existing Statement of Claim only the portion of the Newsletter which directly names the second plaintiff has been pleaded. The proposed amended pleading seeks to “strike in” the whole of the document. The second matter complained of as originally pleaded is constituted by lines 601-659 only of the whole “new” matter.

3 It is submitted that the whole Newsletter would need to…

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.

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Details

Case: [2002] NSWSC 806
Decision Date: 11 September 2002

CaseChat Overview and Summary

The case of Griffith v John Fairfax Publications Pty Ltd involved a plaintiff seeking leave to amend a statement of claim to include additional defamatory imputations. The plaintiff, Griffith, had previously sued the publisher, John Fairfax Publications Pty Ltd, over an article published in The Australian Financial Review. The plaintiff sought to add further defamatory allegations to the statement of claim, which were not included in the original pleadings. The court was required to determine whether the plaintiff could introduce new defamatory imputations at the amendment stage, and if these new imputations could be considered as fresh causes of action that were out of time.

The legal issues before the court centred on the application of Supreme Court Rules, particularly rule 4(5) of Part 20. The plaintiff argued that the new defamatory imputations could be included as they did not require the striking out of the entire matter complained of, but rather the addition of further details to the existing claims. The defendant contended that the new imputations constituted fresh causes of action that were not permitted under the rules governing amendments to pleadings. The court had to balance the plaintiff's right to amend the statement of claim with the principle of finality in litigation and the defendant's right to be protected against the introduction of out-of-time claims.

The court held that the new defamatory imputations proposed by the plaintiff constituted fresh causes of action, which were not permissible under the rules. The court emphasised that amendments that introduce entirely new claims, rather than adding details to existing causes of action, are generally not allowed. In this instance, the new imputations were considered to be so distinct and separate from the original claims that they warranted their own independent consideration. Consequently, the court refused the plaintiff's application for leave to amend the statement of claim to include the new defamatory imputations. The existing claims proceeded to trial, while the new imputations remained outside the scope of the litigation.

Orders