ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :LE MIERE J
Citation  :ROSSEN -v- AIREY [2011] WASC 22
File No  :CIV 1947 of 2009

Catchwords:

Defamation - Appellant sued respondent for letter published to newspaper and republished by newspaper - Indorsement of claim named wrong newspaper - Application to amend indorsement to change name of newspaper - Application outside limitation period - Appeal against dismissal of application - Appeal dismissed - Amendment was new cause of action - Claim as amended did not arise out of substantially same facts as original claim - O 21 r 5 - Amended claim statute-barred

Legislation:

Limitation Act 2005 (WA), s 15
Rules of the Supreme Court 1971 (WA), O 6 r 2, O 21 r 5(1), O 21 r 5(5)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr M L Bennett
Respondent: Mr R W Richardson

Solicitors:

Appellant: Lavan Legal
Respondent: Lemonis/Tantiprasut Lawyers

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

ABB Service Pty Ltd v Hetherington [2001] WASCA 235
Carrie v Tolkien [2009] EWHC 29 (QB)
Dow Jones & Co Inc v Gutnick [2002] HCA 56
Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
Glendinning v Cuzens [2009] WASCA 21
Komarek v Ramco Energy Plc [2002] EWHC 2501 (QB)
Lee v Wilson (1943) 51 CLR 276
Morgan v Banning (1999) 20 WAR 474
Rayney v The State of Western Australia [No 3] [2010] WASC 8
Read v Brown (1888) 22 QBD 128
Rossen v Airey [2011] WASC 22
Sims v Wran [1984] 1 NSWLR 317
Speight v Gosnay (1891) 60 LJQB 231
Stone James (A Firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233
Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173
TWM Landal Ltd v Time Inc [2003] EWCA Civ 06
Webb v Bloch (1928) 41 CLR 331
Weldon v Neal (1887) 19 QBD 394

PULLIN JA: I agree with Newnes JA.
NEWNES JA: This appeal raises a short point, but for the parties a very important one. The appellant caused a writ for defamation to be issued against the respondent concerning a letter which the appellant alleged the respondent had written to 'Community Newspapers' and had been republished by that entity. In fact, the letter was written to, and republished by, an altogether different entity, 'The Post Newspaper'. By the time the mistake was discovered by the appellant's solicitor, the limitation period had expired.
The appellant applied to amend the writ to substitute 'The Post Newspaper' for 'Community Newspapers' in the indorsement of claim. Le Miere J dismissed the application on the ground that the amendment would introduce a new, statute‑barred, cause of action: Rossen…

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 Rossen v Airey

Details

AGLC: Rossen v Airey [2012] WASCA 26
Case: [2012] WASCA 26
Decision Date: 6 FEBRUARY 2012

CaseChat Overview and Summary

The appellant, Rossen, filed a defamation action against the respondent, Airey, due to a letter published in a newspaper and subsequently republished. The appellant sought damages for the publication, which was alleged to have been defamatory. The original claim form indorsement incorrectly named the newspaper where the letter appeared. To correct this error, the appellant applied to amend the indorsement to accurately reflect the newspaper's name. This application was made outside the limitation period. The trial judge dismissed the application to amend, leading the appellant to appeal this decision.

The primary legal issue before the court was whether the amendment to the indorsement constituted a new cause of action. If so, the amendment would be considered statute-barred under the relevant procedural rules. The court had to determine whether the amendment, by changing the name of the newspaper, introduced new facts that were not part of the original cause of action. Furthermore, the court needed to decide whether the amendment was permissible under the circumstances and if it related back to the original cause of action.

The court held that the amendment to the indorsement was indeed a new cause of action, as it altered a fundamental fact of the claim. The court reasoned that the amendment introduced new elements that were not part of the original claim, thus constituting a distinct cause of action. Consequently, the amendment was not permitted as it was beyond the limitation period. The court further found that the claim, as amended, did not arise out of the same facts as the original claim, leading to the conclusion that the amendment was statute-barred under O 21 r 5 of the procedural rules. Therefore, the appeal was dismissed.

Orders