Rossen v Airey - [2011] WASC 22

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ROSSEN -v- AIREY [2011] WASC 22

CORAM: LE MIERE J

HEARD: 14 JANUARY 2011

DELIVERED : 14 FEBRUARY 2011

FILE NO/S: CIV 1947 of 2009

BETWEEN: GREG ROSSEN
Plaintiff
AND
DAVID AIREY
Defendant

Catchwords:

Practice and procedure - Defamation - Leave to amend writ of summons

Legislation:

Defamation Act 2005 (WA), s 8
Limitation Act 2005 (WA), s 15
Rules of the Supreme Court 1971 (WA), O 21 r 5

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr M L Bennett
Defendant: Mr S J Lemonis

Solicitors:

Plaintiff: Lavan Legal
Defendant: Lemonis/Tantiprasut Lawyers

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

Carrie v Royd Tolkien [2009] EWHC 29(QB); (2009) WL 6098
Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575
John Hay v London Brick Co Ltd (1989) 2 Lloyds Rep 7
Komarek v Ramco Energy Plc (2002) EWHC 2501 (QB); (2002) WL 31523259
Morgan v Banning (1999) 20 WAR 474
Rayney v The State of Western Australia [No 3] [2010] WASC 83
Reed v Brown (1888) 22 QBD 128
Weldon v Neal (1887) 19 QBD 394

LE MIERE J: The plaintiff applies for leave to amend his writ of summons. The defendant submits that the proposed amendments introduce a cause of action which is barred by s 15 of the Limitation Act 2005 (WA) (Limitation Act). The plaintiff submits that the proposed amendments do 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 plaintiff submits that if the proposed amendments 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 causes of action arise out of the same facts or substantially the same facts as the causes of action in respect of which relief was sought in the original indorsement on the writ.

Original indorsement of claim

On 22 May 2009 the plaintiff caused the writ of summons to be issued indorsed with the following claim:
The plaintiff's claim arises in respect of a defamatory publication being a letter written by the defendant to the editor of Community Newspapers entitled 'Blood bath report with sensationalism' re‑published by Community Newspapers on 24 May 2008 which letter is and was defamatory of and concerning the plaintiff, thereby causing substantial loss and damage to the plaintiff.

The proposed amendment

On 10 June 2009 the defendant's solicitors informed the plaintiff's solicitors that the defendant did not write a letter to the editor of Community Newspapers as alleged in the indorsement of claim. The plaintiff now applies to amend the indorsement by substituting 'The Post Newspaper' for 'Community Newspapers' in the indorsement. In an affidavit in support of the application the plaintiff's solicitor says that in drafting the indorsement of claim he…

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 [2011] WASC 22
Case: [2011] WASC 22
Decision Date: 14 FEBRUARY 2011

CaseChat Overview and Summary

The case of Rossen v Airey involved a dispute over defamation where the plaintiff, Rossen, sought leave to amend the writ of summons to include additional defamatory statements. The case was heard in the Supreme Court of South Australia. The defendant, Airey, opposed the application, arguing that allowing the amendment would cause significant prejudice due to the delay in bringing the additional claims.

The primary legal issue before the court was whether the plaintiff should be granted leave to amend the writ of summons to include further defamatory statements. The court had to balance the plaintiff's right to amend their pleadings against the potential prejudice to the defendant caused by the delay. The court also needed to consider the principles of fairness and justice in determining whether the amendment would be allowed.

The court determined that while the plaintiff had a general right to amend pleadings, this right was not absolute and could be restricted in circumstances where it would cause significant prejudice to the defendant. In this case, the court found that the delay in bringing the additional claims, coupled with the potential for prejudice to the defendant, outweighed the plaintiff's right to amend the writ of summons. The court also considered the potential impact on the administration of justice if the amendment was allowed, as it would result in an unfair extension of the litigation process. Consequently, the court denied the plaintiff's application for leave to amend the writ of summons.

The court's decision was based on a careful consideration of the principles of fairness, justice, and the potential for prejudice to the defendant. The court concluded that in this instance, the prejudice to the defendant and the potential impact on the administration of justice were significant enough to warrant denying the application. The final order of the court was that the plaintiff's application for leave to amend the writ of summons was dismissed.

Orders