Defamation Act 2005 (WA), s 8

Limitation Act 2005 (WA), s 15

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

1 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.

2 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.

3 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 inadvertently made reference to a letter written by the defendant to the editor of Community Newspapers when he intended to make reference to a letter written by the defendant to the editor of the Post newspaper.

4 It is a rule of practice (the rule in Weldon v Neal (1887) 19 QBD 394) that the court will not allow an amendment setting up a cause of action which, if the writ were issued at the date of the amendment, would be barred by a statute of limitations. Section 15 of the Limitation Act provides that an action relating to the publication of defamatory matter cannot be commenced if one year has elapsed since the publication. The plaintiff could not now commence an action against the defendant in respect of a publication to the editor of the Post Newspaper republished by the Post Newspaper on 24 May 2008 because causes of action based on those publications are now statute barred.

5 Order 21 r 5(2) and (5) provide that, with leave of the court, the writ may be amended 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 writ. The Full Court held in Morgan v Banning (1999) 20 WAR 474 that this power is restricted. If the plaintiff proposes to reformulate an indorsement to extend to additional instances of a cause of action already alleged in the indorsement the court may permit the amendment if the new cause of action is based on the same or substantially the same facts as the original cause of action. However, if the plaintiff proposes to add a new and different cause of action, the amendment cannot be allowed outside the limitation period.

6 The expression 'cause of action' describes a factual situation which will entitle a person to approach the court for relief: Morgan v Banning (Wheeler J (484)). In order to determine whether an amendment raises a new cause of action which the statute of limitation prohibits or a new description or formulation of a cause of action already within the indorsement the court must consider the nature of the form of action pursued by the plaintiff and the facts stated in the indorsement.

7 In John Hay v London Brick Co Ltd (1989) 2 Lloyds Rep 7 the plaintiff sought leave to amend his writ and statement of claim. The claim indorsed on the writ was for damages for personal injuries as a result of an accident on 18 November 1974 whilst in the defendant's employment as a blocker, which accident was caused by the negligence, breach of duty or breach of statutory duty of the defendant. The plaintiff applied to amend the writ to refer to an accident on 3 December 1975. The first question for the court to consider was whether the proposed amendment would introduce a new cause of action. The English Court of Appeal held that it would not. Donaldson LJ approved the statement of the court in Reed v Brown (1888) 22 QBD 128 that as a general proposition a cause of action consists of every fact which it would be necessary for the plaintiff to prove in order to support his right to judgment. Donaldson LJ emphasised that it does not comprise every piece of evidence which is necessary to prove every fact but every fact which is necessary to be proved. His Lordship said that in that case it may well be necessary to call evidence as to date in order to identify the incident of which the plaintiff complains, but the date itself is not material to his complaint. His Lordship observed that the plaintiff may succeed even if the judge was unable to say what the date of the accident was. The judge might say 'you have a cause of action but we have now got to go on to consider whether it arose before or after the particular date because an issue had arisen under the statute of limitation' but the cause of action exists irrespective of whether it was barred by the statute. The date of the accident was not a part of the plaintiff's cause of action.

8 In one sense the facts sought to be relied upon in the proposed amendment are similar to those already pleaded; that is to say, the allegations about the plaintiff in the publication complained of are the same. However, an element of a claim in defamation is the publication of the allegations to a third party. Each publication gives rise to a different cause of action. A separate tort of defamation is committed each time a defamatory letter or article is read. In Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 Callinan J said:

Each publication under current law gives rise to a separate cause of action. This is entrenched in Australian and English law. The principle was recently confirmed by the English Court of Appeal. Samuels JA rightly observed in Australian Broadcasting Corporation v Waterhouse, a single publication rule could only be introduced throughout Australia by statute [197].

The common law has not been relevantly changed by the Defamation Act 2005 (WA). Indeed s 8, which provides that a person has a single cause of action for multiple defamatory imputations in the same matter, reflects the common law that each publication gives rise to a separate cause of action.

9 The proposed amendment seeks to substitute different causes of action for those contained in the current indorsement. A publication to the editor of the Community Newspapers is a different cause of action from a publication to the editor of the Post newspaper. Republication of the material complained of by Community Newspapers is a different cause of action from republication by the Post newspaper.

10 In Komarek v Ramco Energy Plc (2002) EWHC 2501 (QB); (2002) WL 31523259 the claimants alleged that by letter dated 20 May 2000 the defendants published to the British Ambassador in Prague and to the First Secretary (Commercial) at the British Embassy in Prague and Principal Representative in the Czech Republic of British Trade International certain allegations about the claimants in a document headed 'Bullet Points on the Komareks/MND'. The claimants sought to amend the particulars of claim to raise a claim in respect of the publication of the same words (ie the contents of the Bullet Points document) to Sir Jeremy Mackenzie and the republication of the contents by Sir Jeremy to other individuals including the Czech Ambassador to the United Kingdom and the Czech Ambassador to NATO. Eady J refused the application. His Honour stated that the amendments sought to add new causes of action and the new causes of action 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 held that the new causes of action did not arise out of the same facts and there was no power to allow the amendments.

11 In Carrie v Royd Tolkien [2009] EWHC 29(QB); (2009) WL 6098 the claimant alleged that the defendant had published defamatory material on the defendant's blog site. The claimant applied to amend his claim form to complain of publication on a different website, namely the claimant's own website. Eady J said:

I have no doubt that the claim in respect of the publication on the claimant's own website does represent a 'new claim', since it is well recognised that every publication represents a separate cause of action. It is not based on the same or similar facts for largely similar reasons. The fact giving rise to a cause of action in a defamation context is the fact of publication. That is plainly different in the case of the [plaintiff's] website from any publication on the [defendant's] website. (As a matter of fact, there is no evidence to suggest it was ever published on the latter) [27].

12 Counsel for the plaintiff referred to the following statement by Martin CJ in Rayney v The State of Western Australia [No 3] [2010] WASC 83:

... questions of fact and degree are involved in the judgment that has to be made in relation to the application of O 21 r 5(RSC). 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].

13 There will be many cases where questions of fact and degree will be involved in determining 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. However, in my view, the critical factor in this case is that the publication of the letter to a third party is an element of the tort. The material part of the cause of action in libel is not the writing of the letter but the publication of it. Each publication gives rise to a different cause of action. Publication to one person may give rise to different issues than publication to another person. Different defences, such as that of qualified privilege, may apply. The publication of a letter to one person cannot be characterised as even substantially the same fact as the publication of the same letter to a different person.

14 Section 15 of the Limitation Act provides that an action relating to the publication of defamatory matter cannot be commenced if one year has elapsed since the publication. More than one year has elapsed since the alleged publication referred to in the proposed amendment. Order 21 r 5(2) and (5) confer on the court a discretion to allow a writ to be amended 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 writ. The amendment sets up new causes of action and the new causes of action do not arise out of the same facts or substantially the same facts as the causes of action referred to in the current indorsement. It is not a question of discretion. The rule of practice precludes the court from allowing the amendment.

15 The plaintiff says, in effect, that he intended to commence action in respect of the publication of the letter written by the defendant to the editor of the Post newspaper entitled 'Blood bath report' and the republication of the letter by the Post newspaper on 24 May 2008 but by mistake referred to publication to the editor of Community Newspapers and republication by Community Newspapers in the indorsement. There is no power to amend, or give leave to amend, an indorsement where the drafter of the indorsement mistakenly referred to the wrong person as the person to whom the defamatory material was published. Order 21 r 5(3) empowers the court to allow an amendment to correct the name of a party, notwithstanding that the effect of the amendment will be to substitute a new party, if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the party intending to sue or, as the case may be, intended to be sued. However, there is no rule empowering the court to amend an indorsement to substitute the name of the person to whom the defamatory material was published where the wrong person was named by mistake.

16 The plaintiff's application to amend his writ of summons will be dismissed.