The limitation points
44 The second and fourth objections overlap and may be dealt with together. Dr Cooper did not name The Age Company as a respondent when he commenced the proceeding by lodgement for filing on 15 February 2023, that being generally accepted as the relevant date for limitation purposes: see McGee A, Limitation Periods (Sweet and Maxwell 7th ed 2014) at 2.009. No submission to the contrary was made to me. He now contends (and there is no dispute) that it is the publisher (or at least one of) of The Age newspaper and the associated website. The first publication occurred on the website on 17 February 2022, and the print edition issued the next day.
45 The limitation period is one year from the date of first publication: ss 20A(1), 20AB and 20AD. Dr Cooper has not made an application to extend time as provided for at s 20AC. On his submission an extension application is not necessary because this Court may join a party under r 9.05 and permit amendments to be made under r 8.21 even where a limitation period for the commencement of a proceeding has expired.
46 The respondents submit that leave to join and to amend should properly be refused for several reasons: the claims are out of time, the new claims for relief do not arise out of the same facts within the meaning of r 8.21(g), there is no existing claim for relief which may be joined, delay in making the application is unexplained and the proposed pleading is either embarrassing, confusing or is otherwise liable to be struck out pursuant to r 16.21.
47 A party may be joined pursuant to r 9.05 if, inter alia, the party ought to have been joined in the first place. An applicant may apply for leave to amend an originating application pursuant to r 8.21(g), which I have set out earlier. Sub-rules (2) and (3) provide:
(2) An applicant may apply to the Court for leave to amend an originating application in accordance with paragraph (1)(c), (d), (e) or subparagraph (g)(i) even if the application is made after the end of any relevant period of limitation applying at the date the proceeding was started.
(3) However, an applicant must not apply to amend an originating application in accordance with subparagraph (1)(g)(ii) after the time within which any statute that limits the time within which a proceeding may be started has expired.
48 Rule 9.05 is silent about whether a respondent may be added where it is claimed that the applicant is out of time. When a proceeding is amended to add a party the amendment operates prospectively: r 9.05(3). Futility is a reason to refuse amendment applications: Allstate Life Insurance Company v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26 at 36, Lindgren J. It is likely futile to permit an amendment which will obviously be defeated by a limitation defence, which explains the general rule of practice that a defendant will not be added where the cause of action is statute-barred: Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 236, Dawson J. When a statement of claim is amended the relation back rule applies, unless it is otherwise ordered: Air Link Pty Ltd v Paterson (No 2) (2003) 58 NSWLR 388; [2003] NSWCA 251 (Airlink) at [47], Mason P. Rule 16.54 displaces the relation back rule but is limited in application to amendments made without leave under r 16.51. Similarly an amendment to an originating application made under r 8.21 relates back, save in the case of substitution of a party where r 8.22 applies and the proceeding is taken to have commenced for that party on the date of amendment: Environinvest Ltd (in liq) v Former Partnership of Webster, White, Gridley, Nairn, Newman, Peters and Miller (2012) 208 FCR 376; [2012] FCA 1307 at [29], Gordon J.
49 It should not be overlooked that Lord Esher MR in Weldon v Neal at 395 did not state a mandatory principle: Airlink at [56], Mason P. Rather his Lordship expressed in a summary way "the settled rule of practice" that amendments will not be allowed "when they prejudice the rights of the opposite party as existing at the date of such amendments." The focus of the inquiry is whether it would be unjust to allow an amendment by introducing "a new matter of controversy at a time when it is already barred by statute": Horton v Jones (No 2) (1939) 39 SR (NSW) 305 at 315, Jordan CJ; Airlink at [57]-[59], Mason P.
50 A curious aspect of the drafting of the Rules is that although Division 9.1 is concerned with multiple causes of action and the joinder of parties, an originating application may be amended under Division 8.3 for amendment generally "including" the matters enumerated at r 8.1(a)-(g) and r 8.22 expressly provides that where an originating application is amended to substitute a party, then the proceeding is taken to have started for that person on the day of the amendment unless otherwise ordered. Thus Division 9.1 is not a code for the joinder of parties.
51 In McGrath v HNSW Pty Ltd (2014) 219 FCR 489; [2014] FCA 165 (McGrath), Cowdroy J gave detailed consideration to Weldon v Neal and the evolution of this Court's rules to ameliorate its consequences. Although his Honour's reasons focus on the power to permit an amendment to introduce a new cause of action, where r 16.53 (like r 9.05) is silent on the point, his Honour concluded that it was open to do so and followed the reasoning of Murphy J in Australian Securities and Investments Commission v Australian Property Custodian Holdings Ltd (No2) (2013) 213 FCR 289; [2013] FCA 409 (Custodian Holdings). In part, Cowdroy J reasoned at [50]-[51]:
I agree that r 16.53 of the Rules should not be understood to prevent amendments to statements of claim that would have the effect of adding a new cause of action that would otherwise be time barred. To suggest otherwise overlooks not only the changing philosophy and approach of the Court and of the legislature to ensuring that justice is done between the parties on all disputed issues, but also the structure and approach of the current Rules. That approach is to ensure flexibility. Rule 16.53, together with the power provided by s 59(2B) of the Federal Court Act, ensures that the Court will be able to do justice between the parties where amendment to pleadings is sought irrespective of the nature of the amendment or the circumstances in which it has arisen. The only limitation is the discretion of the Court to grant leave. Further, it would be a most unusual result if leave could be granted to amend an originating application to include an otherwise time barred claim, as is contained in r 8 of the Rules, if there were no power to allow consequential amendments to be made to the pleadings. An amendment to the originating application in those circumstances would be a futility.
It is not strictly necessary to revert to the broad discretionary powers contained in the Rules given my finding that r 16.53 is sufficient to grant the type of relief sought. If the interpretation of r 16.53 that I have adopted is incorrect though, rr 1.32, 1.33 and 1.35 may plainly be relied upon to produce the same result. Rule 1.32 permits the Court to 'make any order that the Court considers appropriate in the interests of justice'. Rule 1.33 permits the Court to 'make an order subject to any conditions the Court considers appropriate'. Rule 1.35 permits the Court to 'make an order that is inconsistent with these Rules and in that event the order will prevail'. The breadth of such provisions allows the Court to exercise the power explicitly afforded to it following the decision of Wardley in 1994.
52 The Full Court in McGraw-Hill Financial, Inc v Clurname Pty Ltd [2017] FCAFC 211 (McGraw-Hill), Allsop CJ, Jagot and Yates JJ, dismissed an application for leave to appeal from the decision of a primary judge to grant leave to amend a statement of claim to include a claim for deceit and who further ordered that the amendments be taken to have effect from the date of commencement of the proceedings. The respondent conceded, and the Full Court accepted, that the primary judge erred in ordering that the amendment be back dated and substituted for it an order that the date of effect of the amendments to the originating application and statement of claim be determined at the trial. Otherwise, the application for leave to appeal was dismissed.
53 Relevantly for present purposes, the Full Court held that the Rules did not constrain the power of the Court to grant leave to amend an originating process and a statement of claim so as to add a statute-barred cause of action limited to the circumstances set out at r 8.21(2). Why was explained at [23]-[26]:
The primary judge also expressed doubt about the correctness of Voxson Pty Ltd v Telstra Corporation Ltd (No 7) [2017] FCA 267; 343 ALR 681 at 686 [21] in which it was said that "the Court has the power to grant leave to amend both an originating process and a pleading to add a statute-barred cause of action but only in the circumstances referred to in r 8.21(2) of the FCR". The primary judge noted that Clurname had not submitted that Voxson was wrong to this extent, let alone plainly wrong, and thus proceeded assuming it to be correct, as he was required to do. We are not subject to the same constraints as the primary judge. We do not consider that Voxson is correct in this respect. The language of r 8.21(1) is clear: an applicant may apply to the Court for leave to amend an originating application for any reason "including" any of the reasons in r 8.21(1)(a)-(g). Subrules (a) to (g) are examples of amendments that may be the subject of application. They are not a code. Thus, the interaction of r 8.21(1)(g) and (2) does not mean that the Court's power to permit an amendment asserted to involve a statute-barred claim is confined to the circumstances in r 8.21(1)(g)(i). We leave to one side for further argument the proper approach to an amendment introducing an unarguably statute-barred claim. Nevertheless, the following considerations undermine any rigid or bright-line approach exclusively based on r 8.21(1)(g) and r 8.21(2).
The Federal Court Rules must also be construed as a whole. Apart from the fact that the power to apply to amend is expressed inclusively in the opening words of r 8.21(1), other rules disclose the true position. Thus, the rules include
R 1.32
The Court may make any order that the Court considers appropriate in the interests of justice.
R 1.33
The Court may make an order subject to any conditions the Court considers appropriate.
R 1.34
The Court may dispense with compliance with any of these Rules, either before or after the occasion for compliance arises.
R 1.35
The Court may make an order that is inconsistent with these Rules and in that event the order will prevail.
R 16.51
(1) A party may amend a pleading once, at any time before the pleadings close, without the leave of the Court.
(2) However, a party may not amend a pleading if the pleading has previously been amended in accordance with the leave of the Court.
(3) A party may further amend a pleading at any time before the pleadings close if each other party consents to the amendment.
(4) An amendment may be made to plead a fact or matter that has occurred or arisen since the proceeding started.
Rules 1.32 to 1.35 are important weapons in the Court's armoury to enable the overarching purpose of the "civil practice and procedure provisions" (defined in s 37M(4) of the Court Act to comprise the Rules and "any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Court") to be achieved as identified in s 37M(1) of the Court Act. The overarching purpose is to facilitate the just resolution of disputes according to law, as quickly, inexpensively and efficiently as possible. Faced with these provisions to construe r 8.21(1)(g) as an exclusive power to permit a statute-barred amendment let alone a merely arguably statute-barred amendment (as in the present case) only in the circumstances permitted by r 8.21(2), is inconsistent with the language of the Rules and inimical to the overarching purpose in s 37M of the Court Act. As the present case demonstrates, given the competing arguments about when the cause of action first accrued and the potential operation of s 55(1) of the Limitation Act, if there is a reasonable argument the claim is not statute-barred, there is no reason in principle that an amendment should not be permitted, particularly if all rights are preserved by the date on which the amendment takes effect being determined as part of the final judgment rather than on an interlocutory basis.
To the extent it has any remaining operation in this Court, the rule in Weldon v Neal (1887) 19 QBD 394 at 395 to the effect that a party is not permitted to amend a pleading to add a cause of action which is statute-barred, depends on the new claim being statute-barred. As Wardley at 533-534 makes plain, that matter should not ordinarily be determined at an interlocutory stage.
54 Justice Jackson in Revill v John Holland Group Pty Ltd [2020] FCA 1633 (Revill) refused an application for leave to join respondents under r 9.05 and to plead a statutory claim that was prima facie time-barred. The proceeding involved a claim by a former employee who contended that his terms of employment incorporated an employee financial support plan and a consequential obligation on the part of his employer to effect income protection insurance for his benefit. The employee suffered a non-work related injury in June 2013. His claim was refused, he asserted, in breach of contract. He did not commence a proceeding until August 2019. In defence the respondent denied that it was the employer and then named two employing entities. The employee then made an application to join the named entities as respondents. He did not prepare the form of a draft amended statement of claim. His Honour discerned from the content of the applicant's written submissions that he intended to rely upon the statutory right of the third-party beneficiary pursuant to s48 of the Insurance Contracts Act 1984 (Cth).
55 The respondents submitted the claim under any contract of insurance was time barred pursuant to the six year period at s 13 of the Limitation Act 2005 (WA) and accordingly the joinder application should be refused. His Honour accepted that the applicant had an arguable claim against the respondents as proposed to be joined, but dismissed the application on the basis that the claim did not have reasonable prospects of success because it was time barred. In reasoning in that way, his Honour correctly recognised that the standard of inquiry is whether the claim has "no reasonable prospect of success": [21]-[22].
56 His Honour refused the joinder application for two reasons. One, the failure to articulate a coherent claim founding a liability in the parties proposed to be joined: [38]. The other that the limitation point was decisive at [37]:
It is true that if JHPL and JHG Mutual were to be joined, they would have the burden of establishing the limitation defence. But that makes little difference in circumstances where there can be no factual controversy about the application of the defence, and Mr Revill has failed to raise any cogent legal argument as to why it does not apply. In my view, the availability of the limitation defence means that Mr Revill's proposed claim against JHPL or JHG Mutual would not have reasonable prospects of success, so that the court should exercise its discretion against joining those companies to this proceeding.
57 What is apparent from the decision is that counsel failed to draw to the attention of Jackson J the decisions in McGrath, Custodian Holdings and McGraw-Hill. Nor was any argument put to his Honour that a party may be joined and a claim amended in the exercise of this Court's discretion by reference to any of the principles identified in those cases.
58 Whilst it is clear in this case that Dr Cooper did not commence a proceeding against The Age Company within one year from the date of first publication of the article complained of, he did commence a proceeding against Nine Entertainment as the asserted publisher and Mr Niall and Mr Ryan as the responsible journalists. In seeking to join The Age Company as a respondent and to allege that it is responsible for publication of the online article on 17 February 2022 and the print edition on 18 February 2022, he does not assert a new head of claim or materially different facts and the amendments as proposed plainly arise out of the same facts or substantially the same facts pleaded in relation to the online publication within the meaning of r 8.21(g)(i). I reject the contrary submission of Ms Alick to the effect that publication of the articles on different days and in different formats, each of which gives rise to a separate cause of action, steps this case outside of that rule. The submission is in my view, and with respect, pedantic and artificial. The issue is one of degree, requiring consideration of the extant pleaded facts and the proposed facts, which in this case includes consideration of the extent to which adding a respondent alters, if at all, the basis of the claim: Re Spec FS NSW Pty Ltd (in liq) (2013) 225 FCR 79; [2013] FCA 1027 at [39], Wigney J.
59 The pleading amendments so far as relevant to the limitation point are anodyne in content. Dr Cooper seeks to plead that The Age Company together with Nine Entertainment is part of a media group which owns, is the proprietor of and is the publisher of The Age newspaper and its associated websites. The amendments extend to pleading the fact of publication of the print edition of the newspaper on or about the date of first publication of the article on the website. Extensive deletions are proposed for a number of paragraphs that, on the face of it, have nothing to do with a claim in defamation, such as the plea that negligence is relevant to the plaintiff's cause of action: Dow Jones at [25]. A more extensive series of amendments are proposed to plead new imputations, which is a matter the subject of separate objection by the respondents and which I address below. Dr Cooper then proposes to plead the serious harm element arising from the imputations contained in each publication of the articles complained of. There is a further proposed plea of republication as the natural and probable consequence of publication of each article in the first place.
60 It should not be overlooked that when Dr Cooper complained about publication of the article, in his email correspondence of 26 July 2022, 31 August 2022, 25 October 2022, 31 October 2022 and 2 November 2022, he addressed his emails to the Editor of The Age newspaper and referenced the print version of the article. The concerns notice was similarly addressed and referenced. Thus, there can be no doubt that The Age Company was on notice for a considerable period in 2022 that Dr Cooper considered that he had been defamed.
61 In oral submissions, I enquired of Ms Alick what prejudice, if any, might be suffered by The Age Company if it were to be joined to the proceeding which included a claim based on the print article. Apart from the obvious submission that a grant of leave would deprive The Age Company of the benefit of the statutory bar, no other prejudice was identified. A submission was however put to the effect that despite it being open to Dr Cooper to apply for an extension of the limitation period pursuant to s 20AC, he has not done so and that I should further find that his delay in providing a concerns notice and in ultimately commencing this proceeding is a reason to refuse the leave application. Dr Cooper did not provide an affidavit which explained his delay. In an affidavit made by his solicitor Mr Kimpton on 19 May 2023, there is some material that explains why Dr Cooper did not proceed sooner related to a notification received by him in April 2022 from the Australian Health Practitioner Regulatory Authority, which took time to deal with. In a further affidavit made on 9 June 2023, Mr Kimpton gives evidence about certain searches that he undertook in order to ascertain the publisher of The Age newspaper on that day. There is no evidence as to what searches, if any, were undertaken prior to the commencement of the proceeding in order to identify the publisher of The Age newspaper.
62 Balanced against these matters, I observe that what is presently sought by Dr Cooper is an amendment to his proceeding that was commenced within time, albeit one presently limited to the online publication. If the Rules of this Court permit the amendments to be made, then there is no reason for Dr Cooper to make a separate application for an extension of time for the commencement of his proceeding. Delay per se, if not satisfactorily explained, may be a reason to refuse the amendments. However, what is clear is that Dr Cooper was not silent throughout 2022 and, in the case of some of his correspondence, it was not responded to by the Editor of The Age newspaper for some months: as an example it took the Editor until 1 September 2022 to respond to the initial email from Dr Cooper of 26 July 2022. What is more significant in my view is that The Age Company as a proposed respondent does not contend that prejudice has been suffered by reason of delay, save for the limitation point.
63 Plainly I have a discretion pursuant to r 8.21(1)(g) to permit amendments to be made to the originating application to add or substitute a new claim for relief or a new foundation in law for a claim for relief that arises out of the same or substantially the same facts as those already pleaded. For the reasons I have given, the amendments to that extent are within this power. And further, I may do so even if the limitation period, in this case in relation to publication of the print article, has expired: r 8.21(2). The question in this case which informs the exercise of that discretion is whether the respondents will suffer prejudice. Apart from being deprived of what is, in my view, quite technical reliance upon the fact that in a defamation proceeding each publication is a separate cause of action, and therefore pleading the print article is out of time, there is simply no merit in the arguments relied upon to oppose the amendments so as to insert a claim based on the print article.
64 The next issue is whether I have a discretion to join The Age Company as a respondent where on the face of it, the proposed claim is out of time both as to the online and print publications. In my view, the correct lens to approach the resolution of that issue begins with acknowledgement that the so-called rule in Weldon v Neal is one of practice and procedure. Although the Full Court in McGraw-Hill left to one side the "proper approach to an amendment introducing an unarguably statute-barred claim" (at [23]), r 8.21 applies to amendments generally to an originating application and is expressly inclusive as to when leave may be granted. If it is open to amend the originating application to include a new claim for relief despite expiry of a relevant period of limitation, it is difficult to understand why the scheme of the Rules does not also permit the joinder of a party so as to make that claim against it pursuant to r 9.05.
65 As further explained by the Full Court in McGraw-Hill, the rules must be construed as a whole with the overall intent of achieving an harmonious operation. I accept as correct the reasoning of Murphy J in Custodian Holdings and of Cowdroy J in McGrath that, despite the absence of any reference to statute-barred claims at r 16.53, leave may be granted to amend a pleading even where the effect of doing so is to deprive a respondent of a limitation defence. That conclusion is consistent with the reasoning of the Full Court in McGraw-Hill, particularly the interaction of rr 1.32, 1.33 and 1.34 in order to achieve the overarching purpose of civil practice and procedure in this Court: ss 37M and 37N of the FCA Act. I do not approach resolution of the joinder and amendment applications in this case in the same way that Jackson J did in Revill. Ultimately decisions on matters of practice and procedure in this Court turn on evaluative assessment of individual facts. It should not be overlooked that the Rules are concerned with the practice and procedure of the court, may be dispensed with pursuant to r 1.34 and ultimately form a component of the tools available to best promote the overarching purpose: s 37M(3) of the FCA Act.
66 In my view the correct question in this case is whether the orders sought by Dr Cooper should be made in the interests of justice, in furtherance of the overarching purpose and in the context of the operation of rr 8.21 and 9.05 to the particular facts. There is no identifiable prejudice that is likely to be suffered by The Age Company beyond an inability to rely on a limitation defence. Prejudice of that type is common to all respondents who have a limitation defence and who unsuccessfully oppose amendment or joinder applications. Dr Cooper commenced a proceeding in time between a related corporate respondent and two journalists. There is no material difference in the online and print articles. When Dr Cooper complained, he corresponded with the Editor of The Age newspaper. The joinder and amendment applications arise out of the same factual substrate as pleaded in the proceeding as commenced. The delay of Dr Cooper in complaining and in commencing his proceeding is partly explained and in any event the Editor was tardy in his responses. Prima facie, Dr Cooper claims to have suffered significant damage by reason of each form of publication. On balance, I am satisfied that the interests of justice in permitting the joinder and amendments outweigh the prejudice to The Age Company in refusing it.
67 That brings me to the separate question whether in the interests of justice the amendment to plead reliance upon the print article against the original respondent should be allowed. In my view the case is stronger that they do. The material consideration is that each article complained of is in very similar form and the objection is technical and without merit.