Rossen v Airey - [2012] WASCA 26

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ROSSEN -v- AIREY [2012] WASCA 26

CORAM: PULLIN JA
NEWNES JA
ALLANSON J

HEARD: 8 NOVEMBER 2011

DELIVERED : 6 FEBRUARY 2012

FILE NO/S: CACV 23 of 2011

BETWEEN: GREG ROSSEN
Appellant
AND
DAVID AIREY
Respondent

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 v Airey [2011] WASC 22.
The appellant wishes to appeal against that decision. As the decision of the primary judge was an interlocutory decision, the appellant requires leave to appeal: Supreme Court Act 1935 (WA), s 60(1)(f). The appellant also seeks to have additional evidence admitted on the appeal, in the form of an affidavit attaching a corporate and business name search of 'Community Newspapers' conducted at the Australian Securities & Investments Commission (ASIC). No objection was taken by the respondent to the admission of the evidence and accordingly I would admit it.

Background

On 22 May 2009, the appellant caused a writ of summons to be issued, indorsed with the following claim:
The [appellant's] claim arises in respect of a defamatory publication being a letter written by the [respondent] to the editor of Community Newspapers entitled 'Blood bath report with sensationalism' republished by Community Newspapers on 24 May 2008 which letter is and was defamatory of and concerning the [appellant], thereby causing substantial loss and damage to the [appellant].
According to an affidavit of the appellant's solicitor, at the time the writ was issued he mistakenly thought 'The Post Newspaper', in which the letter had appeared, was owned by 'Community Newspapers group'.
On 10 June 2009, the respondent's solicitors informed the appellant's solicitors that the respondent did not write a letter to the editor of

Community Newspapers. It seems it was then the appellant's solicitor realised that the 'The Post Newspaper' was not owned by 'Community Newspapers' but by a different, unrelated, entity. On 17 June 2009, the appellant applied to amend the indorsement by substituting 'The Post Newspaper' in place of 'Community Newspapers'.

It was common ground that, by 17 June 2009, the limitation period had expired. The limitation period was one year from the date of publication of the letter: see Limitation Act 2005 (WA), s 15. The relevant publication in this case occurred on 24 May 2008.
The appellant submitted that the proposed amendments did not add or substitute a new cause of action and the court should exercise its discretion to allow the amendment under O 21 r 5(1) of the Rules of the Supreme Court 1971 (WA). Alternatively, the appellant argued that if the proposed amendments did add or substitute a new cause of action, the court should exercise its discretion to allow the proposed amendments under O 21 r 5(2) and r 5(5), because the new cause of action arises out of the same facts or substantially the same facts as the cause of action in respect of which relief was sought in the original indorsement of claim.

The relevant provision

The appeal turns on the operation of O 21 r 5 of the Supreme Court Rules, which (so far as relevant) is as follows:
(1)Subject to -
…
(c)the following provisions of this rule,
the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as the court may direct.
(2)Where an application to the Court for leave to make the amendment mentioned in sub-rule… (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that sub-rule if it thinks it just to do so.
…
(5)An amendment may be allowed under sub-rule (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.

Findings of the primary judge

The primary judge noted that an essential element of a cause of action in defamation is the publication of the matter complained of to a third party. Each publication constitutes a separate tort and gives rise to a different cause of action [8]. Publication to the editor of 'Community Newspapers' was therefore a different cause of action from publication to the editor of 'The Post Newspaper' and republication of the material complained of by 'Community Newspapers' was a different cause of action from republication of it by 'The Post Newspaper' [9]. Accordingly, the effect of the amendment would be to introduce a new cause of action. His Honour found that as the new cause of action was statute‑barred the amendment was not permissible under O 21 r 5(1).
The primary judge further held that the amendment was not permissible under O 21 r 5(5). As each publication gives rise to a different cause of action, and may raise different issues and give rise to different defences, the publication of defamatory material to one person cannot be characterised as even substantially the same fact as the publication of the same material to a different person [13].

Grounds of appeal

In substance, the appellant relies on the following grounds of appeal:
(1)the primary judge erred in law in finding that republication of the matter complained of by 'Community Newspapers' is a different cause of action to republication of the matter complained of by 'The Post Newspaper';
(2)in considering the application of O 21 r 5, the primary judge erred in law in not applying the 'value judgment' as enunciated in Rayney v The State of Western Australia [No 3] [2010] WASC 83; and
(3)the primary judge erred in law by failing to give any or sufficient weight to the factor that the appellant would effectively be left without a remedy if the application were dismissed.

Disposition of the appeal

Ground 1

Where, as in this case, the relevant limitation period has expired by the time the application to amend the indorsement of claim is made, leave may be granted to make the amendment only:
(a)if the amendment does not add or substitute a new cause of action (O 21 r 5(1)); or
(b)if it does, so long as the new cause of action arises out of the same facts or substantially the same facts as the cause of action alleged in the existing indorsement (O 21 r 5(5)).
In my view, with respect, the primary judge correctly found that the effect of the proposed amendment would be to substitute a new cause of action.
The essence of a cause of action in defamation is publication to a third party of the matter alleged to convey the defamatory imputations: Webb v Bloch (1928) 41 CLR 331, 363. It is the publication to a third party, not the composition of the libel, which is the actionable wrong: Lee v Wilson (1934) 51 CLR 276, 287. As the plurality pointed out in Dow Jones & Co Inc v Gutnick [2002] HCA 56:
The tort of defamation, at least as understood in Australia, focuses upon publication causing damage to reputation … Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act - in which the publisher makes it available and a third party has it available for his or her comprehension.
The bilateral nature of publication underpins the long‑established common law rule that every communication of defamatory matter founds a separate cause of action [25] ‑ [26].
The essential element of publication is reflected in O 6 r 2 of the Supreme Court Rules, which provides that in an action for libel the indorsement 'must state sufficient particulars to enable the publications in respect of which the action is brought to be identified'.
It is also well‑established that where a person publishes defamatory matter to another person, authorising or intending the latter to republish it, or where republication was the natural and probable result of the original publication, the original publisher will be liable for the republication: Speight v Gosnay (1891) 60 LJQB 231, 232; Webb v Bloch (363 ‑ 366). Thus, where a person submits material, such as a letter to the editor, to a newspaper without restricting the publication of the material, the person will be liable for the republication of the material in the newspaper. Someone defamed by the material may sue the person who submitted it both in respect of the publication of the material to the newspaper and in respect of the republication of it in the newspaper, as separate causes of action. Alternatively, they may sue the person on the publication of the material to the newspaper alone and seek to recover damages from the person in respect of the republication as a consequence of the publication to the newspaper. See Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173, 182 ‑ 183; Sims v Wran [1984] 1 NSWLR 317 and generally Gatley on Libel and Slander (11^th ed, 2008) [6.36].
Although it is not as clear as it might be, I understand the indorsement of claim in the present case to allege both a publication of the letter by the respondent to the editor of 'Community Newspapers' and a republication of it by 'Community Newspapers'; that is, it is in the former of the two categories I have referred to.
In the course of argument on the appeal it was submitted by the appellant's counsel that there was no such entity as 'Community Newspapers' at the time the writ was issued. There was debate as to whether, if the indorsement asserted a publication to and by a non‑existent entity, the effect of an amendment to assert publication to and by a real person was to substitute new causes of action.
I do not think it is necessary to pursue that question. There was no evidence that 'Community Newspapers' did not exist at the time the writ was issued. Indeed, the ASIC search which the appellant put into evidence revealed that, as at the date of the search (12 April 2011), 'Community Newspaper Group' and 'Community Newspaper Group Ltd' were registered, and the name 'Community Newspapers' had previously been registered but as at the date of the search it had been deregistered. There was no evidence, however, as to when it had been deregistered and, in particular, whether it had been deregistered before or after the writ was issued on 22 May 2009. Moreover, counsel for the appellant ultimately conceded (ts 20 ‑ 21) that at the time the writ was issued there was a newspaper proprietor known as 'Community Newspapers', being an entirely different entity to the publisher of 'The Post Newspaper'. That is consistent with the explanation in the affidavit supporting the application for the amendment that the appellant's solicitor had thought that 'The Post Newspaper' was owned by 'Community Newspapers group'.
Put shortly, the appellant has simply alleged publication to, and republication by, the wrong newspaper. In my view, the contention that the proposed amendment alleges the same cause of action as the existing claim is unsustainable. A claim that defamatory material was published to, and republished by, one newspaper is a different cause of action to a claim in respect of publication to, and republication by, a different newspaper.
In TWM Landal Ltd v Time Inc [2003] EWCA Civ 06, the appellants alleged that they had been defamed in 'Fortune' magazine, which was published by the respondents. The claim form included the heading of an allegedly defamatory article together with the page numbers, the volume number and the date of publication of the edition of 'Fortune' magazine in which the article appeared. The page numbers related to the American edition of that magazine. The appellants intended to sue in respect of the European edition of the magazine, in which the same material had been published, on the same date. It subsequently sought to amend the claim by amending the page numbers to accord with the pages in the European edition. The respondents contended that the effect of the amendment would be to substitute a new cause of action outside the limitation period. Keene LJ (with whom Browne and Mummery LJJ agreed) said:
A claim for libel in respect of publication to the readers of the American edition is a different claim from one arising from the publication of the libel to a different group of people, such as those in England and Wales. It is just as different a claim as would be one in respect of a wholly different magazine, such a Punch or Country Life. But the argument depends critically on whether the original claim form is to be construed as referring to the American edition of Fortune magazine. [12]
In the result, the court found that it was not to be so construed, the American edition not being distributed within the jurisdiction and the inclusion of the page numbers being unnecessary to the cause of action.
In my view, the claim in the indorsement that the letter was published by the respondent to the editor of 'Community Newspapers' is a different cause of action to the claim in the proposed amendment that the respondent published the letter to the editor of 'The Post Newspaper'. Similarly, the claim that the respondent is liable for the republication of the letter by 'Community Newspapers' to third parties is a different cause of action to a claim that the respondent is liable for the republication of the letter by 'The Post Newspaper' to third parties. In that connection, it must be borne in mind that it cannot be assumed that the third parties would in each case be the same.
I would dismiss the first ground of appeal.

Ground 2

The question raised by the second ground of appeal is whether the primary judge should have found that the amendment was permitted under O 21 r 5(5). As I have mentioned, that depends upon whether the proposed amended cause of action arises out of the same facts, or substantially the same facts, as those relied upon for the cause of action indorsed on the writ. In determining that question, the court is entitled to look beyond the terms of the writ: TWM Landal [16].
The purpose of O 21 r 5(5) is to avoid an overly technical and rigid investigation as to the degree of coincidence which must be found to exist between the facts necessary to establish the original cause of action and those contained in any proposed amendment: Morgan v Banning (1999) 20 WAR 474, 476 ‑ 477. It is no objection to a proposed amendment that some of the facts out of which the new cause of action arises are peculiar to it and that some of the facts out of which the original cause of action arises are peculiar to it. It is enough if the overlap is so great that the new cause of action can be said to arise out of substantially the same facts as the existing cause of action: Stone James (A Firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233, 241 ‑ 242. In Rayney, Martin CJ said:
A value judgment has to be made as to whether the cause of action asserted by the amendment arises out of the same or substantially the same facts as a cause of action previously asserted. No hard and fast line can be drawn to identify clearly and with precision in advance which cases are going to fall on one side of the line and which cases are going to fall on the other. Rather, each case will depend upon its particular facts and circumstances [34].
The appellant argued that the only change to be made by the proposed amendment was as to the description of the newspaper to which, and by which, the letter was published. Counsel submitted that it is clear the essence of the appellant's case would not be altered by the proposed amendment and it therefore fell within O 21 r 5(5). I do not accept that submission.
A 'cause of action' is the factual situation which will entitle a person to approach the court for relief: Morgan v Banning (484). That is, it is the facts which would entitle the plaintiff to judgment, but not the evidence which would be necessary to prove those facts: Read v Brown (1888) 22 QBD 128. It is the facts which would entitle the plaintiff to judgment that are critical in determining the cause of action, not any legal characterisation which might be given to the facts. As Wheeler JA observed in Morgan v Banning (485), a principal purpose of a cause of action is to enable a defendant to know with finality what fact or facts are said to give rise to the action against him, rather than what label may be conveniently applied to those facts. Order 21 r 5(5) permits the re‑categorisation of the facts, but not the addition or substitution of a different claim arising from different facts: Morgan v Banning (486 ‑ 487); Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431.
A fundamental fact necessary to give rise to a cause of action in defamation is the fact of publication of defamatory material to a third party. The fact that defamatory material was published by X to A is a quite different fact to the publication of the same material by X to B. As the primary judge observed, they are different causes of action potentially giving rise to different defences and a different measure of damages. Similarly, a republication of the material by A in one newspaper is a quite different fact to the republication of the material by B in a different newspaper. It is not to the point that the content of the material published is the same.

In Komarek v Ramco Energy Plc [2002] EWHC 2501 (QB), which was relied upon by the primary judge, the claimants alleged that by letter dated 20 May 2000 the defendants published to the British Ambassador and another British embassy official in the Czech Republic, certain allegations about the claimants. The claimants sought to amend the particulars of claim to raise a claim in respect of the publication of the same words to a further person, Sir Jeremy Mackenzie, and the republication of them by him to other individuals including the Czech Ambassador to the United Kingdom and the Czech Ambassador to NATO. Eady J refused the application. His Honour found that the amendments sought to add new causes of action which did not arise out of the same, or substantially the same, facts as the existing claim and which would be statute‑barred. His Honour said:
In one sense, the facts sought to be relied upon in the proposed amendments are similar to those already pleaded; that is to say, the allegations about the claimants are similar. The essence of a claim in libel, however, is not the nature of the allegations but their publication. Each publication gives rise to a different cause of action. The publication to Sir Jeremy cannot, therefore, be characterised as (even 'substantially') the same fact as the publication to the Ambassador [62].
Eady J went on to point out that, although the material might be identical, it could not be assumed that the issues relating to each of the publications would be the same.
In Carrie v Tolkien [2009] EWHC 29 (QB), the claimant alleged that the defendant had published material defamatory of the claimant on the defendant's blog site. An application subsequently to amend the claim to allege publication by the defendant of the same material on the claimant's own website was refused, Eady J holding that the claim was in respect of a separate publication and was therefore a new and separate cause of action, which was time‑barred. His Honour rejected a submission based on the English equivalent to O 21 r 5(5). He concluded that the new claim did not arise out of the same, or substantially the same, facts as the existing claim. His Honour observed that the fact giving rise to a cause of action in defamation is the fact of publication. That was plainly different where the publication was alleged to have occurred on a different website.
In this case, the relevant facts alleged in the indorsement of claim were that a letter conveying imputations defamatory of the appellant had been published by the respondent to the editor of 'Community Newspapers' and republished by 'Community Newspapers' to third parties. The proposed amended indorsement alleges a publication of the letter by the respondent to the editor of a different newspaper, 'The Post Newspaper', and a republication of the letter by 'The Post Newspaper' to third parties. The amendment alleges a new cause of action arising out of different facts to that alleged in the existing indorsement, namely the publication of the letter to a different newspaper and the republication of it by that newspaper to third parties. As I have said, it cannot be assumed that the third parties would in each case be the same. The proposed amendment does more than 'particularise, clarify or expand a cause of action already instituted' (Morgan v Banning; ABB Service Pty Ltd v Hetherington [2001] WASCA 235). It falls outside O 21 r 5(5).
I would dismiss the second ground of appeal.

Ground 3

The third ground of appeal alleges that in refusing to allow the amendment the primary judge erred in the exercise of his discretion by

failing to give any, or sufficient, weight to the consequence that the appellant would be left without a remedy. That contention was based upon the following passage in Glendinning v Cuzens [2009] WASCA 21:
[W]here an indorsement of claim is deficient the plaintiff should ordinarily be allowed a reasonable opportunity to put it into a proper form, so long as that can be done without irremediable prejudice to the defendant. …
Where the relevant limitation period has, or may have, expired after the writ was issued, the consequence that the plaintiff will, or may, be left without a remedy if the writ is set aside is an important factor to be weighed in the balance in determining where the interests of justice lie [34]-[35].

That case does not support the appellant's contention. Glendinning concerned an application by the respondents to strike out an amended indorsement on the ground that it was defective, in that it failed to provide adequate notice of the nature of any claim, it attempted to incorporate additional causes of action without the leave of the court, and it failed adequately to disclose sufficient factual information to determine when any cause of action accrued. The appellant sought leave to further amend the indorsement to cure the defects. Leave to amend was refused at first instance but allowed on appeal. In granting leave to amend, the Court of Appeal stated that any question as to the respondents' rights in respect of limitation issues which might be raised by the amendments could be dealt with by expressly reserving the respondents' rights in that regard [44].
That is a quite different situation to the present case. In this case, there is no doubt that the relevant limitation period has expired. Once it is determined that the effect of the amendment would be to substitute a new cause of action which does not arise out of the same, or substantially the same, facts as those relied upon for the existing cause of action, the position is clear; the court has no discretion to allow the amendment: Weldon v Neal (1887) 19 QBD 394; Morgan v Banning.
It follows that the third ground of appeal must fail.

Conclusion

I would grant leave to appeal but dismiss the appeal.
ALLANSON J: I agree with Newnes JA.