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
WILLIAM ANTHONY McCLELLAND (TRADING AS "CULTAWARE")
(Second Defendant)
(Third Defendant)
JUDGMENT OF: Levine J
COUNSEL : K Smark
P Menadue
(Plaintiffs)
(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 472DECISION: See paragraph 12
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)
WILLIAM ANTHONY McCLELLAND (TRADING AS “CULTAWARE”)DAVID MILLIKAN
(Second Defendant)
(Third Defendant)
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…
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- Case
- [2002] NSWSC 806
- Decision Date
CaseChat Overview and Summary
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.
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