Harvey v John Fairfax Publications Pty Ltd

In *Harvey v John Fairfax Publications Pty Ltd*, the plaintiff, Mr Harvey, appealed to the Court of Appeal of New South Wales against a judgment entered for the defendant, John Fairfax Publications Pty Ltd, and against a refusal to grant leave to amend his Statement of Claim. The dispute concerned allegations of defamation arising from publications by the defendant.

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.