Schwarzbaum & Anor v Federal Capital Press of Australia Pty Limited [2000] ACTSC 28 (31 March 2000)

Last Updated: 3 April 2000

Schwarzbaum & Anor v Federal Capital Press of Australia Pty Limited [2000] ACTSC 28 (31 March 2000)

CATCHWORDS

PRACTICE AND PROCEDURE - Amendment of Statement of Claim to include new plaintiff after expiration of limitation period - Rule in Weldon v Neat.

Limitation Act 1985, ss 21B, 36

Limitation (Amendment) Act 1998¸ s 4 (2)

Klobucar v Neocoat Pty Ltd [1999] ACTSC 96

No. SC549 of 1999

Coram: Master T Connolly

Supreme Court of the ACT

Date: March 2000

IN THE SUPREME COURT OF THE	)
	)	No. SC549 of 1999
AUSTRALIAN CAPITAL TERRITORY	)
		BETWEEN: Maurice Schwarzbaum
		First Plaintiff
		AND: Alina Schwarzbaum
		Second Plaintiff
		AND: Federal Capital Press of Australia Pty Limited
		Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 31 March 2000

THE COURT ORDERS THAT:

1. The First and Second Plaintiffs' application to amend the Originating Application and Statement of Claim by adding Northside Heights Pty Ltd as the Third Plaintiff is dismissed.

2. The Defendant's application to strike out those parts of the Statement of Claim relating to the publication of 15 February 1993 is dismissed.

3. The parties to be heard further on costs and further amendments to the Statement of Claim.

1. This is an action for defamation, commenced by originating application dated 12 July 1999, complaining of the publication of certain articles in the Canberra Times and the Real Estate Times between 15 February 1993 and 19 November 1997. The Real Estate Times, which was originally the second defendant, no longer exists, and that aspect of the claim was discontinued on 30 September 1999.

2. On 17 September 1999 I ordered, by consent, that certain paragraphs of the Statement of Claim be struck out, and that the plaintiffs have leave to amend in respect of those parts of the Statement of Claim that had been struck out. The plaintiffs were to pay the defendants costs in relation to the strike out application, and it was further ordered that unless the matter was resolved consensually between the parties in the meantime, the plaintiffs bring any application for leave to file an Amended Statement of Claim within 21 days.

3. Discussions did occur between the parties as to the future conduct of the matter, but agreement was not reached, and an application was brought by way of Notice of Motion on 28 February 2000 to amend the Originating Application and Statement of Claim in respect of those paragraphs that were struck out on 17 September 1999. The Notice of Motion also sought leave pursuant to Order 19 Rule 13 of the Rules to substitute the names of the plaintiffs to read Mr Maurice Schwartzbaum as the First Plaintiff and Alina Schwartzbaum as the second plaintiff. This aspect of the application merely rectifies a spelling of the first named plaintiff, and was not objected to. The Notice of Motion also sought leave to join Northside Heights Pty Ltd as the Third Plaintiff to the proceedings.

4. The defendant objected to this aspect of the application, arguing that the plaintiff was out of time to bring such an amendment. The defendant said that such an amendment was statute barred, pursuant to the amendments made to the Limitation Act 1985 by the Limitation (Amendment) Act 1998, which commenced on 27 November 1998,and which provides that an action on a cause of action for defamation is not maintainable unless, in the case of a cause of action arising before the commencement of the Act, the action is brought within 1 year of the commencement of the Act, that is, by 27 November 1999. (Limitation (Amendment) Act 1988 s 4 (2)). The only discretion available to a Court to extend the limitation period is where the court is satisfied that it was not reasonable for the plaintiff to have known of the publication, in which case the period may be extended to two years from the date of publication. That is apparently not the case here. There is no broad discretion to extend the limitation period in defamation actions comparable to the power found in s36 of the Limitations Act in respect of actions for damages for personal injuries.

5. The defendant's argument is that it is impermissible to amend these proceedings after the expiration of the relevant limitation period, which even on the most beneficial reading of the Limitation Act 1985 was 27 October 1999, in order to introduce a new plaintiff to the proceedings. Counsel for the defendant referred me to the recent restatement of the law in this context by Higgins J in Klobucar v Neocoat Pty Ltd [1999] ACTSC 96 where His Honour said at paras 20-21

"The principles generally applicable to the addition of a new cause of action by way of amendment to existing proceedings after expiry of a relevant limitation period are laid down by Weldon v Neal (1887) 19 QBD 394. Although there are some exceptions eg if the amendment merely further particularises an existing cause of action (see Golski v Kirk (1987) 72 ALR 443, Nactaria Nominees Pty Ltd v Commonwealth 1993 15 AFPR 40,899), the general rule is that such an amendment ought not be permitted if its effect is to by pass a limitation defence otherwise available to a defendant who wishes to rely upon it - see Emanuele & ors v Hedley & ors [1997] ACTSC 13, (1997) 137 FLR 339. Those principles are equally applicable to an application to add a party to proceedings already commenced and, in consequence, to allege a cause of action against a party by way of amendment, even assuming it would be open to the Court to make an amending order retro active to the date of the originating application."

6. In that case His Honour in fact exercised the discretionary power in s 36 of the Limitation Act to extend time to allow the plaintiff to bring a new personal injuries action against a third party. In the absence of such a discretionary power in the case of a defamation proceeding under s 21B of the Limitation Act, I ruled at the hearing of this Notice of Motion that I would not permit the plaintiffs to amend the proceedings in respect of the addition of a proposed new plaintiff, Northside Heights Pty Ltd, and would publish my reasons for that decision, which I now do.

7. The amendments to the Statement of Claim consequent upon the original strike out orders of September 1999 proposed in the Notice of Motion of February 2000 were cast as part of a general re pleading of the matter involving the new plaintiff, and as I have indicated that I am not prepared to allow this amendment, it seems sensible that the plaintiffs have further leave to re plead to attempt to bring the action into regular form as a defamation action involving allegations against the defendant Federal Capital Press of Australia Pty Ltd arising from the various publications.

8. The defendants further sought an order striking out those parts of the existing pleadings relating to the publication of 15 February 1993, claiming that the limitation period for a tortious claim that existed prior to the Limitation Amendment Act 1998, being six years, would have expired in February 1999, being a time before the present proceedings were commenced by Originating Application of 12 July 1999. Counsel for the plaintiffs argued that section 4 (2) of the Limitation (Amendment) Act 1998 had the effect of extending this limitation period to 27 November 1999, so that the claim is validly brought in respect of this first publication.

9. Section 4(2) provides

"Where a cause of action for defamation has arisen before the commencement of this Act, an action on that cause of action is not maintainable unless brought within 1 year from that commencement."

10. As at the commencement of the Act on 27 November 1999 the cause of action arising from the February 1993 publication had not yet expired under the pre-existing law. It was thus properly described as a cause of action for defamation that had arisen before the commencement of the Act, and it seems to me that on its plain reading s 4(2) of the Limitation (Amendment) Act states that such actions are not maintainable unless brought within 1 year from that commencement day. In many, indeed most cases this has the effect of substantially reducing the limitation period, but in the case of a cause of action that was still maintainable under the general limitation period as at the commencement of the new section, but was due to expire within a period of less than twelve months after that commencement, it seems to me that the section does provide for an extension by way of providing a definite cut off date for bringing all pre existing actions, being twelve months after the commencement of the amending legislation. I find that the action is properly maintainable in respect of the February 1993 publication, and decline to strike those sections of the pleadings out.

11. I will hear the parties as to costs, and as to the consequential amendments to the Statement of Claim.

I certify that this and the eleven (11) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 31 March 2000

Counsel for the Plaintiff: Mr D Casperonn

Instructing Solicitors: Capital Lawyers

Counsel for the Defendant: Mr B Connell

Instructing Solicitors: Minter Ellison

Dates of hearing: 10 March 2000

Date of judgment: 31 March 2000