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McMahon v John Fairfax Publications Pty Ltd

McMahon v John Fairfax Publications Pty Ltd

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New South Wales

Court of Appeal

CITATION: McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308

HEARING DATE(S): 25 October 2010

JUDGMENT DATE:
18 November 2010

JUDGMENT OF: Allsop P at 1; Giles JA at 37; Young JA at 63

DECISION: Appeal dismissed with costs.
[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

CATCHWORDS: PROCEDURE – pleadings – amendment – statement of claim – Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 59 – application to file fourth further amended statement of claim refused – primary judge took into account statutory considerations – just and efficient disposal of proceedings – no error in refusing application to amend

LEGISLATION CITED: Civil Procedure Act 2005 (NSW), ss 57, 58, 59, 60

CATEGORY: Principal judgment

CASES CITED: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Bi v Mourad [2010] NSWCA 17
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
House v The King [1936] HCA 40; 55 CLR 499
Richards v Cornford (No 3) [2010] NSWCA 134
Re Will of Gilbert (1946) 46 SR (NSW) 318

PARTIES: Bryan Francis McMahon (Appellant)
John Fairfax Publications Pty Ltd (First Respondent)
Marcus Priest (Second Respondent)
Rachel Nickless (Third Respondent)

FILE NUMBER(S): CA 2008/289210

COUNSEL: B R McClintock, K L Andronos (Appellant)
A T S Dawson (Respondents)

SOLICITORS: Ardent Legal Pty Limited (Appellant)
Banki Haddock Fiora (Respondents)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2008/289210

LOWER COURT JUDICIAL OFFICER: Nicholas J

LOWER COURT DATE OF DECISION: 8 March 2010

2008/289210

ALLSOP P
GILES JA
YOUNG JA
Thursday 18 November 2010

McMAHON v JOHN FAIRFAX PUBLICATIONS PTY LTD

Judgment

1 ALLSOP P: This is an appeal by leave granted on 25 October 2010 by Young JA and myself in respect of a refusal by the primary judge (Nicholas J) to grant leave to the appellant to amend his statement of claim. The matter is in the Defamation List.

2 Leave was granted in part because of the importance of the need for clarity in how the Civil Procedure Act 2005 (NSW), ss 56-60 operates in relation to the conduct of a busy list such as the Defamation List. The parties agreed to a regime of further written submissions and the appeal being dealt with on the papers with the addition of a judge. Giles JA was added to form the appeal bench.

3 The history of the matter is as follows.

4 In November 2007, counsel was…

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] NSWCA 308
Decision Date: 18 November 2010

CaseChat Overview and Summary

McMahon (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge who refused an application to file a fourth further amended statement of claim in proceedings against John Fairfax Publications Pty Ltd (the respondent).

The central legal issue before the Court of Appeal was whether the primary judge erred in refusing the appellant's application to amend its statement of claim. This involved considering the application of sections 56, 57, 58, and 59 of the *Civil Procedure Act 2005* (NSW), which govern the just and efficient disposal of proceedings.

The Court of Appeal found that the primary judge had correctly taken into account the statutory considerations relevant to the just and efficient disposal of proceedings. The primary judge's refusal of the amendment was not an error, and the Court of Appeal upheld this decision.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

Appeal dismissed with costs.

[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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:	McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308
HEARING DATE(S):	25 October 2010
JUDGMENT DATE:	18 November 2010
JUDGMENT OF:	Allsop P at 1; Giles JA at 37; Young JA at 63
DECISION:	Appeal dismissed with costs. [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
CATCHWORDS:	PROCEDURE – pleadings – amendment – statement of claim – Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 59 – application to file fourth further amended statement of claim refused – primary judge took into account statutory considerations – just and efficient disposal of proceedings – no error in refusing application to amend
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW), ss 57, 58, 59, 60
CATEGORY:	Principal judgment
CASES CITED:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Bi v Mourad [2010] NSWCA 17 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 House v The King [1936] HCA 40; 55 CLR 499 Richards v Cornford (No 3) [2010] NSWCA 134 Re Will of Gilbert (1946) 46 SR (NSW) 318
PARTIES:	Bryan Francis McMahon (Appellant) John Fairfax Publications Pty Ltd (First Respondent) Marcus Priest (Second Respondent) Rachel Nickless (Third Respondent)
FILE NUMBER(S):	CA 2008/289210
COUNSEL:	B R McClintock, K L Andronos (Appellant) A T S Dawson (Respondents)
SOLICITORS:	Ardent Legal Pty Limited (Appellant) Banki Haddock Fiora (Respondents)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2008/289210
LOWER COURT JUDICIAL OFFICER:	Nicholas J
LOWER COURT DATE OF DECISION:	8 March 2010