Hughes v ISPT Pty Ltd (No. 3) - [2010] NSWDC 283

CITATION: Hughes v ISPT Pty Ltd (No. 3) [2010] NSWDC 283

HEARING DATE(S): 16 December 2010

JUDGMENT DATE:
16 December 2010

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: (1) Note the parties’ agreement that all disputes concerning answers to interrogatories have been resolved.
(2) Plaintiff’s application to file Further Amended Statement of Claim to bring proceedings for defamation, s 42 Fair Trading Act 1987 (NSW) and injurious falsehood against Mr and Mrs Splithof and Mr and Mrs Tritton (currently the cross-defendant in the first and third cross-claims) and against the second defendant (s 75B) dismissed.
(3) Grant leave to the second defendant to amend the Defence to the Trade Practices Act claim to plead proportionate liability and correct the typographical errors outlined in paragraph 6 of Mr Potter’s submissions.
(4) Grant leave to the cross-defendant to the first cross-claim to file Amended Defence in 28 days giving full particulars of the matters pleaded including but not limited to any denial of contractual liability.
(5) Matter stood over for further directions to Friday 28 January 2011 noting the substitution argument has been abandoned and this matter will be listed for directions only.
(6) Costs reserved.
(7) Time for continuation of informal discussions is continued until further order.

CATCHWORDS: TORT - defamation - application by plaintiff to amend statement of claim to bring new causes of action and add new parties as defendants - principles in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 discussed - application dismissed

LEGISLATION CITED: Civil Procedure Act 2005 (NSW), s 65(2)(c)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c)
Trade Practices Act 1974 (Cth), ss 51A and 52

CASES CITED: Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676
Ajinomoto Sweeteners Europe SAS v ASDA Stores Limited [2010] EWCA 1717
Anderson v Mirror Newspapers Ltd & Anor (1986) 5 NSWLR 735
AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Associated Leisure Ltd v Associated Newspapers Ltd [1970] 2 QB 450
Channel Seven Adelaid Pty Ltd v Manock [2010] SASCFC 59
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Grant v Rafferty (2001) 34 MVR 136
Henderson v Henderson (1843) 3 Hare 100; 67 ER 313
Hughes v ISPT Pty Ltd [2009] NSWDC 101
Hunter v Chief Constable of West Midlands Police [1982] AC 529; [1981] 3 All ER 727
Ketteman v Hansel Properties Ltd [1987] AC 189
McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308
Palavi v Nationwide News Pty Ltd (District Court of NSW, 10 November 2010)
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Queensland v JL Holdings (1997) 189 CLR 146
Reichel v Magrath (1889) 14 App Cas 665
Rogers v R (1994) 181 CLR 251; 123 ALR 417; [1994] HCA 42
Roult v North West Strategic Health Authority [2009] EWCA Civ 44
Tedeschi v Franklins Ltd (Supreme Court of NSW, Levine J, 23 September 1994, unreported)
Walton v Gardiner (1993) 177 CLR…

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: [2010] NSWDC 283
Decision Date: 16 December 2010

CaseChat Overview and Summary

The plaintiff, Hughes, applied to amend their statement of claim to bring new causes of action and add new parties as defendants against ISPT Pty Ltd and other individuals. The matter was before the court to decide whether the plaintiff could amend the statement of claim to include additional defendants and causes of action, specifically defamation, s 42 Fair Trading Act 1987 (NSW), and injurious falsehood. The court had to consider the principles in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, which set out the criteria for granting leave to amend pleadings.

The court considered whether the proposed amendments would cause any prejudice to the defendants or any delay or injustice to the proceedings. The court also had to consider the timing of the application, the nature of the proposed amendments, and whether there were any substantial merits in the proposed new causes of action. The court found that the application was made too late, and the proposed amendments would cause prejudice to the defendants, particularly in relation to the new causes of action against the additional defendants. The court also found that the plaintiff had not demonstrated any substantial merits in the proposed new causes of action.

The court dismissed the plaintiff's application to amend the statement of claim. The court also granted leave to the second defendant to amend the Defence to the Trade Practices Act claim to plead proportionate liability and correct typographical errors. The court granted leave to the cross-defendant to the first cross-claim to file an Amended Defence within 28 days. The matter was stood over for further directions, and costs were reserved. The parties were directed to continue informal discussions until further order.

Orders

Orders of the court

(1) Note the parties’ agreement that all disputes concerning answers to interrogatories have been resolved.

(2) Plaintiff’s application to file Further Amended Statement of Claim to bring proceedings for defamation, s 42 Fair Trading Act 1987 (NSW) and injurious falsehood against Mr and Mrs Splithof and Mr and Mrs Tritton (currently the cross-defendant in the first and third cross-claims) and against the second defendant (s 75B) dismissed.

(3) Grant leave to the second defendant to amend the Defence to the Trade Practices Act claim to plead proportionate liability and correct the typographical errors outlined in paragraph 6 of Mr Potter’s submissions.

(4) Grant leave to the cross-defendant to the first cross-claim to file Amended Defence in 28 days giving full particulars of the matters pleaded including but not limited to any denial of contractual liability.

(5) Matter stood over for further directions to Friday 28 January 2011 noting the substitution argument has been abandoned and this matter will be listed for directions only.

(6) Costs reserved.

(7) Time for continuation of informal discussions is continued until further order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hughes v ISPT Pty Ltd (No. 3) [2010] NSWDC 283
HEARING DATE(S):	16 December 2010
JUDGMENT DATE:	16 December 2010
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Note the parties’ agreement that all disputes concerning answers to interrogatories have been resolved. (2) Plaintiff’s application to file Further Amended Statement of Claim to bring proceedings for defamation, s 42 Fair Trading Act 1987 (NSW) and injurious falsehood against Mr and Mrs Splithof and Mr and Mrs Tritton (currently the cross-defendant in the first and third cross-claims) and against the second defendant (s 75B) dismissed. (3) Grant leave to the second defendant to amend the Defence to the Trade Practices Act claim to plead proportionate liability and correct the typographical errors outlined in paragraph 6 of Mr Potter’s submissions. (4) Grant leave to the cross-defendant to the first cross-claim to file Amended Defence in 28 days giving full particulars of the matters pleaded including but not limited to any denial of contractual liability. (5) Matter stood over for further directions to Friday 28 January 2011 noting the substitution argument has been abandoned and this matter will be listed for directions only. (6) Costs reserved. (7) Time for continuation of informal discussions is continued until further order.
CATCHWORDS:	TORT - defamation - application by plaintiff to amend statement of claim to bring new causes of action and add new parties as defendants - principles in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 discussed - application dismissed
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW), s 65(2)(c) Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c) Trade Practices Act 1974 (Cth), ss 51A and 52
CASES CITED:	Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 Ajinomoto Sweeteners Europe SAS v ASDA Stores Limited [2010] EWCA 1717 Anderson v Mirror Newspapers Ltd & Anor (1986) 5 NSWLR 735 AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Associated Leisure Ltd v Associated Newspapers Ltd [1970] 2 QB 450 Channel Seven Adelaid Pty Ltd v Manock [2010] SASCFC 59 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Grant v Rafferty (2001) 34 MVR 136 Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 Hughes v ISPT Pty Ltd [2009] NSWDC 101 Hunter v Chief Constable of West Midlands Police [1982] AC 529; [1981] 3 All ER 727 Ketteman v Hansel Properties Ltd [1987] AC 189 McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308 Palavi v Nationwide News Pty Ltd (District Court of NSW, 10 November 2010) Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Queensland v JL Holdings (1997) 189 CLR 146 Reichel v Magrath (1889) 14 App Cas 665 Rogers v R (1994) 181 CLR 251; 123 ALR 417; [1994] HCA 42 Roult v North West Strategic Health Authority [2009] EWCA Civ 44 Tedeschi v Franklins Ltd (Supreme Court of NSW, Levine J, 23 September 1994, unreported) Walton v Gardiner (1993) 177 CLR…