Rossen v Airey

[2012] HCATrans 158

[2012] HCATrans 158

Office of the Registry
  Perth   No P4 of 2012

B e t w e e n -

GREG ROSSEN

Applicant

and

DAVID AIREY

Respondent

Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 22 JUNE 2012 AT 12.58 PM

Copyright in the High Court of Australia

MR M.L. BENNETT:   If it please, your Honours, I appear on behalf of the applicant.  (instructed by Lavan Legal)

MR S.J. LEMONIS:   May it please the Court, I appear on behalf of the respondent.  (instructed by Lemonis Tantiprasut)

HEYDON J:   Yes, Mr Bennett.

MR BENNETT:   The short point, its shortness belying its importance, is the proposition that the court below erred in holding that an endorsement of claim which is the mandatory means by which an action for defamation must be commenced in the State of Western Australia, preserving from public scrutiny the statement of claim and the defence which might otherwise give circulation to the defamatory publication, is to be construed on the basis that an error in the statement of a fact that constitutes an element of the cause of action that forms part of the gist of that action, however small, however apparently non‑prejudicial, which occurs and the Limitation Act then expires, is incapable of being cured.

There is no contest by the applicant with the propositions enunciated in the court below that publication is an essential part of the tort of defamation.  We do not argue with that, but if, for example, the endorsement of claim had said that the publication was to a man, John Smith, and the name John was spelt in the convention Anglo way of J‑O‑H‑N, would it be an answer incurable if it was pointed out that the man in question spelt his Christian name J‑O‑N, without an “H”?

HEYDON J:   No, because it is precisely the same man.

MR BENNETT:   On the argument that was accepted by his Honour, the first instance judge, his Honour Justice Le Miere, and repeated by Appeal Justice Newnes, it does not matter that it is a same man or a non‑existent man.  There is the possibility that it refers to a third party and that possibility raises with it, his Honour Justice Le Miere held, different considerations, potential different defences. 

I posit that as a hypothetical instance to illustrate the nature of the inflexible application of the rule in Weldon v Neal that is applied and the way in which it reduces the curative effect of Order 21, rule 5 of the Rules of the Supreme Court of Western Australia to simply the reclassification of the same facts, a reduction that reduces the concept of a basket of facts to a mere handful, carrying with it the consequence that a slip of the hand falls outside the handful.

The proposition, we say, is to be tested against the backdrop that the purpose of the endorsement of claim was to identify, for the purpose of Mr Airey, the author of a letter, and presumably a man who knew the addressee of his correspondence and who in the courts below asserted no prejudice from the position, from the error and the endorsement of claim.  The purpose is to identify the nature of the cause of action that is brought against him and relief sought. 

It is plain that the endorsement of claim identified the nature of the cause of action being one for defamatory statements of and concerning the applicant and the relief sought was adequately described.  We say that this is not a situation that pertained 125 years ago when Lord Esher gave the primary speech in Weldon v Neal, itself a defamation matter, a slander case where Ms Weldon appeared for herself before the Court of Appeal in what was, from the report of the case, the second trip to the Court of Appeal by Ms Weldon.

It is not an inflexible rule.  In the modern age, it is not a matter of catch as catch can.  If there is an error in the description, an error can be cured in circumstances where the respondent can point to no prejudice.  If we are wrong in that our alternative is that there is statutory power to remedy under Order 21, rule 5 which ameliorates against an inflexible application of the rule in Weldon v Neal so as to enable a party to look at substantially an amendment which deals with substantially the same facts as the cause of action. 

Your Honours see reproduced in paragraph 10 of Appeal Justice Newnes’ reasons for decision at pages 16 to 17 of the application book Order 21, rule 5.  It is in terms that your Honours would be familiar with: 

An amendment may be allowed . . . to add or substitute a new cause of action if the new cause of action arises out of the same facts –

and then the words which are rendered nugatory by the interpretation then given by the Court of Appeal below are –

substantially the same facts as a cause of action –

We would, with respect, adopt what Lord Diplock described in Letang v Cooper that a cause of action is simply a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person.  What the rules entitle a litigant to do is to come to the court and say from substantially the same facts, if I can add another fact, then I am entitled to raise a new cause of action, the cause of action itself being the shorthand description for a different set of facts. 

Now, the approach that was adopted by the court below in dealing with what was then ground 2 of our ground of appeal was to say that in paragraph 31 on page 22 of the application book that the fact that we sought to add, that is, the correction of the name of the recipient newspaper that republished the letter to the editor was a:

fundamental fact necessary to give rise to a cause of action ‑ 

We do not quibble with that, but it is a new fact and, accordingly, that it raised in his Honour’s view a new cause of action and not then within the context and the confines of Order 21, rule 5. 

This is an appropriate vehicle to test the application of Weldon v Neal which your Honours know was touched on briefly in this Court by his Honour Justice Toohey, with whom Justice Deane concurred, in Wardley v The State of Western Australia in a passage that is strictly obiter where his Honour remarked that it is not a rule of practice.  It is an appropriate vehicle, we say, because although the facts are sharply illustrated by a cause of action in defamation, it would have broader application to the efficacy of an endorsement of claim and an attempt to amend the endorsement of claim to go beyond what their Honours in the court below picked up from her Honour Justice Wheeler in Morgan v Banning’s reasons for decision in the Court of Appeal some years ago in Western Australia. 

The purpose of Order 21, rule 5 is to enable a reclassification of the same facts.  We say that that inflexibility of the rule in Weldon v Neal has been legislatively affected by the introduction of subrule 5 of Order 21 which gives to the parties the ability to add additional fact, in our case, one additional fact and I might add the subtraction of one and the addition of another in order to give efficacy to the writ and to the cause of action.  That is the point of principle that we raise and the reason why we say this Court ought to receive the matter.

BELL J:   The circumstance that made it significant in light of the cause of action being in defamation was the difficulty of saying that it was not substantially a different set of facts when it was publication to a different body altogether.  It seemed to me to be a circumstance that arises in the context of defamation proceedings in a rather pointed way.

MR BENNETT:   That is why it is a good vehicle, your Honour, to deal with this.  The circumstance, it is a fiction.  Mr Airey knew which newspaper he wrote his letter to.  He knew the publication.  He knew it was of and concerning Mr Rossen.  He had it identified.  He points to no prejudice.  The correction of a slip is the matter encompassed in the modern

pursuit of litigation and it gives effect to each court in Australia as an obligation to do substantial justice between the parties.  If it please your Honours.

HEYDON J:   Yes, thank you, Mr Bennett.  We need not trouble you, Mr Lemonis.

In our opinion, the decision of the Court of Appeal of the Supreme Court of Western Australia was correct.  Accordingly, the application for special leave to appeal is dismissed with costs.

The Court will adjourn to 10.15 am on Tuesday, 7 August 2012 in Canberra.

AT 1.08 PM THE MATTER WAS CONCLUDED