GRIFFITH & ORS v JOHN FAIRFAX PUBLICATIONS PTY LTD & ORS [2002] NSWSC 806 | Case summary

GRIFFITH & ORS v JOHN FAIRFAX PUBLICATIONS PTY LTD & ORS [2002] NSWSC 806 | Case summary | Zoe

[17]

JUDGMENT (leave to amend - "strike in" of whole matter complained of - "fresh" imputations - "out of time" as causes of action - SCR Pt 20 r 4(5)) 1 By Notice of Motion filed on 14 August 2002 the plaintiffs seek to amend the Statement of Claim. The application was prosecuted as against the third defendant. The proposed Amended Statement of Claim is annexed to an affidavit of Michael Kobras, solicitor for the plaintiffs, sworn 14 August 2002. 2 The purpose of the application is to have pleaded by the plaintiffs in relation to what is described as the second matter complained of, the whole of the Newsletter published in or about August 1995 by Mr McClelland. In the existing Statement of Claim only the portion of the Newsletter which directly names the second plaintiff has been pleaded. The proposed amended pleading seeks to "strike in" the whole of the document. The second matter complained of as originally pleaded is constituted by lines 601-659 only of the whole "new" matter. 3 It is submitted that the whole Newsletter would need to be considered by the jury in any event in giving attention to the context in which the presently pleaded lines 601-659 are placed. The balance of the Newsletter as proposed to be pleaded is submitted to be defamatory of the plaintiffs when read with lines 601-659, a proposition reinforced by consideration of the passages in the whole of the proposed matter particularised in support of the imputations pleaded. 4 This aspect of the plaintiffs' application causes no difficulty. Had the plaintiffs pleaded the whole of the matter complained of in their original pleading any application by the defendants to have struck out what is now sought to be pleaded would have been doomed to failure, in my view, and it was conceded by Mr Menadue for the third defendant that no objection could have been taken (see: Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd & Ors (1971) 1 NSWLR 472; Gordon v Amalgamated Television Services Pty Ltd & Anor (1980) 2 NSWLR 410; Murphy v Nationwide News, Levine J, unreported, 1 April 1993; Keating v Newcastle Newspapers Pty Ltd [2000] NSWSC 726). 5 The problem arises in relation to certain imputations included in the proposed amended pleading which can be described as "fresh" (some of the imputations in the proposed amended pleading are only slightly recast from the original). 6 The proposed imputations, by way of example, said to be defamatory of Jeremy Griffith are pleaded in paragraph 12 as follows: 12(a) Jeremy Griffith is so deluded that he claims to be greater than Jesus Christ; (b) Jeremy Griffith is a tyrant who does not tolerate the questioning of his ideas; (c) Jeremy Griffith is the leader of an organisation which places unreasonable demands on members of the FHA such that families are torn apart; (d) Jeremy Griffith is the leader of a destructive cult which poses a threat to the community; (e) Jeremy Griffith uses mind control techniques on unwitting victims ; (f) Jeremy Griffith engages in deceptive practices to recruit followers ; (g) Jeremy Griffith is a dangerous lunatic.

[18]

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:

GRIFFITH & ORS v JOHN FAIRFAX PUBLICATIONS PTY LTD & ORS

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Judgment (22 paragraphs)

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Cases Cited (3)

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