Younan v Nationwide News Pty Ltd

The application for amendment 26The plaintiffs contended before this Court, that, contrary to the view of the particulars I have taken above, the existing particulars were consistent with the plaintiffs leading evidence at the trial from readers that they knew of operation by the plaintiffs of the boarding house prior to the date they read the article. 27I do not accept that it would have been open to the plaintiffs to lead such evidence. By using the present tense, the particulars clearly referred to knowledge of current operation only (see [15] above). Contrary to the plaintiffs' submission, that construction of the particulars does not render them insensible: for example, when reading the article, and mentioning it to another person, perhaps in a café, the reader might have been told that the plaintiffs (at that time) operated the boarding house. 28The plaintiffs' counsel asserted that this was not the intended meaning of the particulars and, lest the Court construe the particulars as I have indicated, sought to supplement them (see [11] above) to enable the plaintiffs to call evidence of the type referred to in [26] above. 29The readers covered by the amended particulars could extend to readers of the article who were in fact aware that the plaintiffs were operating the boarding house as early as three months following the last of the incidents in question. It is possible such a reader could reasonably conclude, in those circumstances, that the plaintiffs were the operators of the premises referred to in the article. Whether, assuming that the reader reached that conclusion, he or she in fact acted reasonably in so concluding would be a question of fact for the jury. 30The question of at what interval of time the reasoning of a reader would cease to be rational and become speculative is not easy to determine. Questions of degree are obviously involved. Whether my conclusion would be the same if the period involved were four or five months, or some longer period, does not arise for consideration. 31In these circumstances, I consider that the plaintiffs should be granted leave to supplement their particulars by adding the first of the two alternative formulations proffered (see [11] above). That addition to the particulars would, for the reasons I have given, mean that at the trial the plaintiffs would be able to lead, in accordance with their pleading and supplemented particulars, evidence capable of establishing that an ordinary sensible reader reasonably concluded that the subject article referred to the plaintiffs. This grant of leave seems to me to be the just course to take as the plaintiffs wish to propound an arguable case which they would otherwise be precluded from pursuing, and the only prejudice to the defendants, that of costs, can be cured by appropriate orders. 32I do not accept that any of the factors relied upon by the defendants in opposition to this grant of leave require a contrary conclusion. These were, in substance, that the defendants' written submissions before this Court had some months ago put the plaintiffs on notice of the difficulty with their particulars; that the plaintiffs previously amended their particulars to delete an allegation that a class of readers knew that the plaintiffs had operated the boarding house since 9 November 2010; and that the plaintiffs had not, but should have, demonstrated that they have evidence of the type to which I have referred to in [26] above available to call. 33In putting these submissions, the defendants referred to Aon Risk Services Aust Ltd v Australian National University [2009] HCA 27; 239 CLR 175 but, for a number of reasons, that case was very different from the present. In particular, the amendment in that case was sought on the third day of a four week trial, requiring the trial's adjournment, at considerable cost and expense. Further, that amendment raised entirely new issues which is not the case here. 34It is regrettable that the order for separate determination in this matter has resulted in unnecessary costs being incurred but that is a risk that is run where such orders are made, or indeed summary dismissal or strike out applications are made. These steps give plaintiffs an opportunity to reconsider their positions and, perhaps, to thwart them by seeking to amend pleadings or particulars. As Aon illustrates, a defendant may be in a better position to resist such an amendment if it is sought during a trial, when the consequence of its allowance may be an adjournment with corresponding expense to parties and to public resources. It is less likely that the Court will at an interlocutory stage refuse to permit a plaintiff to amend to raise an arguable case. 35My conclusion that leave to amend should be granted should not be taken as involving the expression of a view as to the sufficiency of the supplementary particulars. If necessary, that will have to be determined at first instance after the plaintiffs have supplied any further details of their additional allegations that are available.