HARVEY v JOHN FAIRFAX PUBLICATIONS PTY LTD [2004] NSWSC 188

HARVEY v JOHN FAIRFAX PUBLICATIONS PTY LTD [2004] NSWSC 188

Leave to amend was refused because the proposed new imputations could and should have been advanced before the earlier s7A trial, the Anshun or cognate abuse of process principles applied notwithstanding that the litigation was within the same proceedings, and granting the amendment would effectively disregard or negate the Court of Appeal's order that the new trial be confined to imputation (a).

Jurisdiction
Australia
Judgment Date
22 March 2004
Procedural Posture
Defamation Proceedings / Plaintiff's Notice of Motion Seeking Leave to Amend the Statement of Claim to Add Fresh Imputations After an Unsuccessful S7 a Trial and a Partially Successful Appeal Ordering a New Trial Confined to Imputation (a)
Outcome
The plaintiff's notice of motion was dismissed with costs, and the matter was placed in the list to be called up for the new s7A trial as ordered by the Court of Appeal.
Legal Topics
['amendment of Pleadings' 'imputations' 'res Judicata' 'anshun Principles' 'abuse of Process' 'effect of Court of Appeal Order' 's7 a Trial']
['defamation' 'civil Procedure'] ['amendment of Pleadings' 'imputations' 'res Judicata' 'anshun Principles' 'abuse of Process' 'effect of Court of Appeal Order' 's7 a Trial']

Case Brief

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Procedural Posture

Defamation Proceedings / Plaintiff's Notice of Motion Seeking Leave to Amend the Statement of Claim to Add Fresh Imputations After an Unsuccessful S7 a Trial and a Partially Successful Appeal Ordering a New Trial Confined to Imputation (a)

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to amend the statement of claim to add fresh imputations after the Court of Appeal ordered a new trial confined to imputation (a).' 'Whether res judicata or principles from Port of Melbourne Authority v Anshun Pty Ltd prevented the plaintiff from raising imputations that could have been raised before the earlier s7A trial.' "Whether allowing the amendment would be an abuse of process or would disregard the effect of the Court of Appeal's order." 'Whether the proposed imputations were capable, proper in form, and different in substance from imputations already rejected by the jury.']

Ratio Decidendi

Leave to amend was refused because the proposed new imputations could and should have been advanced before the earlier s7A trial, the Anshun or cognate abuse of process principles applied notwithstanding that the litigation was within the same proceedings, and granting the amendment would effectively disregard or negate the Court of Appeal's order that the new trial be confined to imputation (a).

Court Disposition

The plaintiff's notice of motion was dismissed with costs, and the matter was placed in the list to be called up for the new s7A trial as ordered by the Court of Appeal.

Orders

  • ["The plaintiff's notice of motion is dismissed with costs." 'I place the matter in the list to be called up for the new s7A trial as ordered by the Court of Appeal.']