Rossen v Airey

[2012] WASCA 26

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Defamation
2. › Publication
3. › Each publication to different third party constitutes separate cause of action
4. › Amendment of writ to substitute different newspaper
5. › Whether amendment introduces new cause of action
6. › Limitation Act 2005 (WA), s 15
1. Practice and Procedure
2. › Amendment of pleadings
3. › Amendment after expiry of limitation period
4. › Whether new cause of action arises out of same or substantially same facts
5. › Rules of the Supreme Court 1971 (WA), O 21 r 5(1), O 21 r 5(5)
1. Limitation of Actions
2. › Defamation
3. › One-year limitation period
4. › Amendment introducing new cause of action after limitation period expired
5. › No discretion to allow amendment where new cause of action statute-barred and not arising from substantially same facts
6. › Limitation Act 2005 (WA), s 15

Quick Take

An amendment to a defamation writ that substitutes a different newspaper as the entity to which, and by which, defamatory material was published introduces a new cause of action. Such an amendment does not arise out of the same or substantially the same facts as the original claim, because the fact of publication to one newspaper is a quite different fact from publication to another, even where the content is identical. Where the limitation period has expired, the court has no discretion to allow such an amendment.