Knell v Harris [No 3] - [2015] WADC 38

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KNELL -v- HARRIS [No 3] [2015] WADC 38

CORAM: HERRON DCJ

HEARD: 24 MARCH 2015

DELIVERED : 24 MARCH 2015

PUBLISHED : 2 APRIL 2015

FILE NO/S: CIV 3385 of 2013

BETWEEN: SIDNEY CHARLES KNELL
First plaintiff
QAV PTY LTD
Second plaintiff
AND
KATHRYN ISABEL HARRIS
First defendant
WARREN MATHESON LANCE
Second defendant
NETLINE PTY LTD
Third defendant

Catchwords:

Defamation - Amendment to indorsement of claim - Application to disallow amendment - Whether a new cause of action - Whether barred by s 15 Limitation Act 2005 - Order 21 r 5 Rules of the Supreme Court 1971 - Order 6 r 2 Rules of the Supreme Court 1971

Legislation:

Limitation Act 2005 s 15
Rules of the Supreme Court 1971 O 6 r 2, O 21, r 5

Result:

Appeal allowed and consequential orders made

Representation:

Counsel:

First plaintiff                  :     Mr J D MacLaurin
Second plaintiff             :     Mr J D MacLaurin
First defendant              :     Mr M C Goldblatt
Second defendant          :     Mr M C Goldblatt
Third defendant             :     Mr M C Goldblatt

Solicitors:

First plaintiff                  :     Lawton Gillon
Second plaintiff             :     Lawton Gillon
First defendant              :     Lavan Legal
Second defendant          :     Lavan Legal
Third defendant             :     Lavan Legal

Case(s) referred to in judgment(s):

Carrie v Tolkien [2009] EWHC 29 (QB)
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56
Morgan v Banning (1999) 20 WAR 474
Rayney v Western Australia [No 3] [2010] WASC 83
Rossen v Airey [2012] WASCA 26
TWM Landal Ltd v Time Inc [2003] EWCA Civ 06

HERRON DCJ: [This judgment was delivered orally on 24 March 2015 and has been edited from the transcript.]

Background

On 23 October 2012, the second defendant, Warren Lance, sent an email to Eleanor Logrudice. It is not in issue the email was sent at 9.10 am on 23 October 2012. Neither is it in issue the email was sent on behalf of the first and third defendants. The email referred to the first plaintiff, Mr Knell. It referred to and attached a decision concerning Mr Knell from an adjudicator in Queensland.
By writ of summons dated 18 October 2013, the plaintiffs commenced an action in damages for defamation. Paragraph (a) of the indorsement of claim claims:
Damages for defamation including aggravated and exemplary damages arising out of the words published by the Second Defendant and for and on behalf of the First and Third Defendants as appears in the email dated 23 October 2012 entitled 'Subject: Ascot Village – COO Meeting 25 Oct '12' published at 9.10am on 23rd October 2012.
By an amended writ of summons dated 9 September 2014, the plaintiffs sought to amend the indorsement of claim in par (a) by deleting the wording, 'at 9.10 am'.
The plaintiffs filed a statement of claim on 10 April 2014, in which, at par 1, the full content of the email relied upon as giving rise to the…

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.

Continue reading Knell v Harris [No 3]

Details

AGLC: Knell v Harris [No 3] [2015] WADC 38
Case: [2015] WADC 38
Decision Date: 2 APRIL 2015

CaseChat Overview and Summary

In the case of Knell v Harris, the plaintiff sought to amend his indorsement of claim to include a new cause of action for defamation. The defendant opposed the amendment, arguing that the new cause of action was barred by the limitation period under section 15 of the Limitation Act 2005. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the amendment to the indorsement of claim constituted a new cause of action and, if so, whether it was barred by the limitation period.

The court considered the principles set out in Order 21 rule 5 and Order 6 rule 2 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). The court held that the amendment did indeed introduce a new cause of action, as it sought to allege a new set of facts amounting to defamation. However, the court found that the new cause of action was not barred by the limitation period, as it was based on the same set of underlying facts as the original claim. The court concluded that the amendment did not constitute a new cause of action and allowed the plaintiff to proceed with the amended claim.

The court's decision was based on the principle that amendments to a claim should be allowed where they do not prejudice the defendant or introduce new issues that were not previously contemplated. The court held that the amendment in this case did not introduce any new issues or prejudice the defendant, and therefore the plaintiff was entitled to proceed with the amended claim. The defendant's application to disallow the amendment was dismissed.

Orders