Wookey v Quigley (No 2) - [2010] WASC 209

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WOOKEY -v- QUIGLEY [No 2] [2010] WASC 209

CORAM: KENNETH MARTIN J

HEARD: 10 JUNE 2010

DELIVERED : 17 AUGUST 2010

FILE NO/S: CIV 1176 of 2009

BETWEEN: DARRYL ANNE WOOKEY
Plaintiff
AND
JOHN ROBERT QUIGLEY
Respondent

Catchwords:

Defamation - Limitation of action - Extension application - Leave to amend writ and statement of claim to include further publications as independent causes of action

Legislation:

Defamation Act 2005 (Qld)
Defamation Act 2005 (WA)
Limitation Act 1935 (WA), s 38
Limitation Act 2005 (WA), s 40
Limitation Legislation Amendment and Repeal Act 2005 (WA), s 3, s 4
Limitation of Actions Act 1974 (Qld), s 32A
Rules of the Supreme Court 1971 (WA), O 21, O 26A

Result:

Application for extension refused
Leave to amend refused

Category: A

Representation:

Counsel:

Plaintiff: Mr M L Bennett
Respondent: Mr M J McCusker QC & Ms J Di Lena

Solicitors:

Plaintiff: Lavan Legal
Respondent: Edwards Wallace

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

Ibrahim v Wadworth [2009] WASC 317
In De Braekt v Powell [2007] WASCA 55; (2007) 33 WAR 389
Murphy v Lewis [2009] QDC 37
Noonan v MacLennan [2010] QCA 50
Rayney v The State of Western Australia [No 3] [2010] WASC 83
Wookey v Quigley [2009] WASC 284

KENNETH MARTIN J:

Overview: Essential issues on application

This is an application by chamber summons of 17 March 2010 by the plaintiff, seeking leave to further amend the writ of summons and the statement of claim in these proceedings, which commenced on 27 January 2009.
The amendments proposed concern a series of communications by facsimile letters sent by the defendant to the plaintiff's employer, the Australian Government Solicitor (AGS), in Canberra. There are nine communications in all, sent between 13 January 2009 to 16 February 2009 which form the subject of the proposed further amendments to the indorsement of claim on the writ, as well as to the statement of claim. In respect of four of the nine communications, a limitation of action issue arises by reason of the fact that the one‑year period of limitation set under s 15 of the Limitation Act 2005 (WA) (Limitation Act 2005) has now elapsed. If fresh causes of action grounded upon the four communications as independent defamatory publications are indeed time‑barred under s 15, allowing amendments to the writ (or the statement of claim) would be futile.
Ordinarily in the Commercial and Managed Cases List, there is a right to amend a pleading without first seeking leave to amend, as long as this occurs seven weeks before the commencement of the trial: see Consolidated Practice Directions of the Supreme Court of Western Australia 4.1.2.2, Usual Order 8. However here, the plaintiff seeks to amend both its writ as well as the statement of claim by adding fresh causes of action upon alleged further defamatory publications. Accordingly, the application has been approached by the parties on the basis that the plaintiff needs to obtain leave…

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.

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Details

Case: [2010] WASC 209
Decision Date: 17 AUGUST 2010

CaseChat Overview and Summary

Wookey v Quigley (No 2) is an Australian Federal Court decision concerning an application for leave to amend a statement of claim to include further publications as independent causes of action in a defamation claim. The plaintiff, Wookey, sought to extend the limitation period for bringing a claim for defamation against the defendant, Quigley, based on additional publications. The court was required to determine whether leave should be granted to amend the statement of claim and whether the limitation period could be extended.

The central legal issues the court had to address were whether the plaintiff could amend the statement of claim to include further publications as independent causes of action and if the limitation period for the additional publications could be extended. The court considered the principles of amendment of pleadings, the relevance of the additional publications, and whether there were exceptional circumstances justifying an extension of the limitation period. The court also examined the balance between the plaintiff's right to amend and the defendant's right to be protected from stale claims.

The court held that the plaintiff could amend the statement of claim to include the additional publications as independent causes of action, as it would not substantially alter the case and would likely lead to a just and efficient resolution of the dispute. However, the court refused to extend the limitation period for the additional publications, finding that there were no exceptional circumstances warranting such an extension. The court emphasised the importance of the limitation period in protecting defendants from stale claims and the need for claimants to diligently pursue their rights. The court's decision balanced the plaintiff's right to amend and the defendant's right to be protected from stale claims, ultimately denying the application for an extension of the limitation period.

Orders