Poland v Hedley [No 2] - [2020] WASC 203

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   POLAND -v- HEDLEY [No 2] [2020] WASC 203
CORAM:   LE MIERE J
HEARD:   16 APRIL 2020
DELIVERED          :   11 JUNE 2020
FILE NO/S:   CIV 1370 of 2019
BETWEEN:   GREGORY DAVID POLAND
Plaintiff

AND

KATE HEDLEY
First Defendant

FAIRFAX DIGITAL AUSTRALIA & NEW ZEALAND PTY LTD
Second Defendant

Catchwords:

Practice and procedure - Application for leave to amend writ of summons - Rules of the Supreme Court 1971 (WA) - Order 21 r 5(2) - Principles applying to applications for leave to amend writ - Case management principles - Whether a claim has no real prospect of success - Arguments on unsettled law

Legislation:

Rules of the Supreme Court 1971 (WA)
Surveillance Devices Act 1998 (WA)

Result:

Plaintiff given leave to amend writ of summons

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M L Bennett & Mr A Tharby
First Defendant	:	Mr M C Goldblatt
Second Defendant	:	Mr M C Goldblatt

Solicitors:

Plaintiff	:	Bennett + Co
First Defendant	:	Carmel Galati
Second Defendant	:	Carmel Galati

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

Agar v Hyde (2000) 201 CLR 552
Baldry v Jackson [1976] 2 NSWLR 415
Belgravia Nominees Pty Ltd v Lowe Pty Ltd (2017) 51 WAR 341
Berry v British Transport Commission [1962] 1 QB 306
Boase v Axis International Management Pty Ltd (No 2) [2012] WASC 334
British Motor Trade Association v Salvadori [1949] Ch 556
Courtney v Our Lady's Hospital Ltd [2011] IEHC 226
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hathaway v Barrow (1807) 1 Camp 151
Lonrho Plc v Fayed (No 5) [1993] 1 WLR 1489
Playboy Club London Ltd v Banca Nazionale del Lavora SpA [2019] EWHC 303 (Comm)
Seavision Investment SA v Evennett (The Tiburon) [1992] 2 Lloyd's Rep 26
Tate & Lyle Food Distribution Ltd v Greater London Council [1982] 1 WLR 149
Wigan v Edwards (1973) 47 ALJR 586

LE MIERE J:

Summary

The plaintiff has applied to amend his writ of summons in terms of the minute of proposed re‑amended writ of summons filed 14 January 2020 (draft amended writ) to add a new cause of action for conspiracy. At the request of the defendants, the plaintiff filed a minute of proposed re‑amended statement of claim (the draft amended SOC) which contains the allegations the plaintiff proposes to make in his re‑amended statement of claim if he is given leave to amend the writ in terms of the draft amended writ.
The defendants oppose the plaintiff having leave to amend the writ. Their objection to the draft amended writ is based upon deficiencies they allege in the plaintiff's draft amended SOC.
For the reasons which follow the plaintiff will be given leave to amend his writ of summons in terms of the draft amended writ.

The existing writ

The first defendant (Ms Hedley) is and was at all material times a journalist and…

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 Poland v Hedley [No 2]

Details

AGLC: Poland v Hedley [No 2] [2020] WASC 203
Case: [2020] WASC 203
Decision Date: 11 JUNE 2020

CaseChat Overview and Summary

The case of Poland v Hedley [No 2] involved an application for leave to amend the writ of summons. The dispute originated from a legal claim brought by Poland against Hedley, with the proceedings taking place in the Supreme Court of Western Australia. The nature of the dispute pertained to the procedural aspect of allowing an amendment to the writ of summons, specifically whether the plaintiff should be granted leave to amend the document to add new claims that were not initially presented.

The legal issues the court needed to address included the application of Order 21 r 5(2) of the Rules of the Supreme Court 1971 (WA) concerning the principles governing applications for leave to amend a writ. The court had to consider whether the proposed amendments had a real prospect of success, taking into account the case management principles and the unsettled state of the law on the matter. The court was required to weigh the merits of allowing the amendment against the potential for it to cause prejudice or delay in the proceedings.

The court, in its reasoning, applied the relevant principles to determine that the application for leave to amend the writ was not in the best interest of the administration of justice. It found that the proposed amendments did not have a real prospect of success, given the unsettled nature of the law. Furthermore, the court considered that allowing the amendment could lead to unnecessary prejudice to the defendant and potential delays in the proceedings. Consequently, the court denied the application for leave to amend the writ of summons. This decision underscores the importance of the principles of case management and the careful consideration of amendments in the interest of justice.

Orders