Imputations 12(e) and (f) are "fresh".
7 The point of this is that as to the "fresh" imputations, being causes of action pursuant to s9 of the Defamation Act 1974, the pleading thereof in the Amended Statement of Claim would bring such causes of action outside the limitation period, the publication having been made in August 1995. It is to be noted that the proceedings in any event on the original publication were not commenced until 6 April 2001, approximately five and a half years after the alleged defamation. The present application to amend is brought more than seven years after the alleged defamation. Thus leave is sought under SCR Pt 20 r 4(5). That rule confers a discretion unfettered by any rules of practice and is to be exercised in accordance with the interests of justice: per Glass JA in McGee v Yeomans [1977] 1 NSWLR 273 at 280.
8 For the third defendant it is submitted that the plaintiffs are seeking radically to alter the "factual substratum" on which their claim is based and are doing more than merely particularising an already pleaded cause of action or relying upon facts that are not substantially different from those already pleaded. I am not persuaded of this proposition. The substratum of fact is constituted by the publication which had it been pleaded in full, could not have been the subject of complaint. Further, the additional imputations (without considering SCR Pt 67 r 11(3)) are admittedly different but are within the "domain" of the imputations hitherto pleaded, by way of example, not least imputation 12(d), above.
9 The plaintiffs, as is conceded as I understand it, have given no explanation for the delay in instituting proceedings or the delay in seeking the amendment (see McCarey v Associated Newspapers Ltd (1965) 2 QB 86; Burke v TCN Channel Nine Pty Ltd, Levine J, unreported, 16 December 1994, Gill v Eatts & Ors (1999) Australia Torts Rep 81-529). Thus it is contended that by refusing the proposed amendment the prejudice to the plaintiff will be far outweighed by the prejudice to the third defendant, if granted, the plaintiffs having shown no real interest in prosecuting their rights. The plaintiffs' interest in prosecuting their rights is essentially a matter for damages at trial. Insofar as it plays any role at all here, I am not persuaded that it has any weight.
10 It is further argued by the third defendant that he would be prejudiced if a right which he would enjoy under the Limitations Act 1969 is taken away from him. This poses a problem: if the prejudice to a defendant otherwise entitled to rely upon the Limitation Act is a matter of determinative weight, then it is difficult to see in what circumstances SCR Pt 20 r 4(5) could operate.
11 The third defendant concedes that at this stage he cannot point to any forensic prejudice that would be suffered in the future conduct of the proceedings because of the plaintiffs' delay. It is submitted that nonetheless the Court should make allowance for the "potential for prejudice" as a consequence of the delay. I do not see any basis for prejudice to the defendant arising from the grant of the amendment. The real prejudice might well be to the plaintiffs when they have to confront the issue of delay in the institution of proceedings (and indeed the amendment).
12 In all the circumstances I am persuaded to make the following orders: