CITATION: Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 14 June 2005
JUDGMENT DATE:
5 August 2005JUDGMENT OF: Santow JA at 1; Basten JA at 8; Hunt AJA at 40
DECISION: 1.Leave is granted to the plaintiff to appeal from the refusal by Levine J on 22 March 2004 to grant him leave to amend his Statement of Claim. 2.The appeal against the order made by Levine J on 22 March 2004 is dismissed.; 3. The time for filing an application for leave to appeal from the judgment entered for the plaintiff on imputation (a) on 19 August 2004 is extended until 4 November 2004. 4.Leave is granted to the plaintiff to appeal from that judgment. 5. The judgment entered on 19 August 2004 is varied by deleting both paragraphs and inserting in lieu thereof: (i) Judgment for the defendant in the action. (ii) The plaintiff is to pay the defendant's costs of the action.; 6.The plaintiff is ordered to pay the costs of this appeal; if eligible, he is to have a certificate under the Suitors Fund Act 1951.
CATCHWORDS: Plaintiff’s imputation unreasonably rejected by jury - verdict set aside and new trial ordered - plaintiff’s imputation rejected by second jury - whether judgment should be entered that, as a matter of law, the imputation was in fact conveyed - whether issues of imputation being conveyed and defamatory of the plaintiff should be tried by the same tribunal - Whether a third trial should be ordered where two juries had made the same unreasonable finding - heavy burden on appellant - whether jury’s verdict should be allowed to stand notwithstanding appellate court’s view that, had there been only one trial, there should have been a new trial - Application by plaintiff before second trial to add imputations to his Statement of Claim that could and should have been pleaded in the first trial - not pleaded in first trial in order to obtain maximum tactical advantage - whether it facilitates the just, quick and cheap resolution of the real issues in litigation to permit a plaintiff to plead imputations in second trial after he has failed to obtain that advantage in the first trial - New pleading practice in defamation litigation of pleading imputations in the words of the matter complained of, rather than (as was previously the practice) in order to identify the act or condition attributed to the plaintiff by the publication giving rise to the defamation - whether compliance with SCR Pt 67 r 11(2)
LEGISLATION CITED: Civil Procedure Act 2005
Defamation Act 1974
Public Health Act 1991
Suitors Fund Act 1951
Supreme Court Act 1970
Supreme Court Procedure Act 1900CASES CITED: Ainsworth v Burden [2005] NSWCA 174
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Amalgamated Television Services v Marsden [1999] NSWCA 313
Amalgamated Television Services Pty Ltd…
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- Case
- [2005] NSWCA 255
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the plaintiff should have been granted leave to amend his Statement of Claim to add further imputations, particularly given that these imputations could have been pleaded in the initial trial but were withheld for tactical advantage. The court also considered whether, in light of two juries having made the same "unreasonable finding" regarding the imputation conveyed by the publications, judgment should be entered for the defendant as a matter of law, and whether the issues of imputation being conveyed and being defamatory should have been tried by the same tribunal.
The Court of Appeal reasoned that permitting a plaintiff to amend their Statement of Claim to add imputations in a second trial, after failing to secure a tactical advantage by withholding them in the first trial, did not facilitate the just, quick, and cheap resolution of the real issues in litigation. The court noted the new pleading practice in defamation cases requiring imputations to be pleaded in the words of the matter complained of, and compliance with relevant court rules. Ultimately, the court found that the plaintiff bore a heavy burden in seeking to have the jury's verdict stand, especially where two juries had reached the same unreasonable finding.
The Court of Appeal granted the plaintiff leave to appeal the refusal to amend his Statement of Claim, but dismissed that appeal. The court also extended the time for the plaintiff to appeal a judgment entered in his favour on imputation, granted leave to appeal that judgment, and then varied the judgment to enter judgment for the defendant in the action, with the plaintiff to pay the defendant's costs of the action and the costs of the appeal.
Orders
Orders of the court
1.Leave is granted to the plaintiff to appeal from the refusal by Levine J on 22 March 2004 to grant him leave to amend his Statement of Claim. 2.The appeal against the order made by Levine J on 22 March 2004 is dismissed.; 3. The time for filing an application for leave to appeal from the judgment entered for the plaintiff on imputation (a) on 19 August 2004 is extended until 4 November 2004. 4.Leave is granted to the plaintiff to appeal from that judgment. 5. The judgment entered on 19 August 2004 is varied by deleting both paragraphs and inserting in lieu thereof: (i) Judgment for the defendant in the action. (ii) The plaintiff is to pay the defendant's costs of the action.; 6.The plaintiff is ordered to pay the costs of this appeal; if eligible, he is to have a certificate under the Suitors Fund Act 1951.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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