Supreme Court New South Wales Medium Neutral Citation: Visscher v Maritime Union of Australia (No 5) [2013] NSWSC 1640 Hearing dates: 6 November 2013 Decision date: 06 November 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Application to amend refused. Catchwords: PRACTICE AND PROCEDURE - application to amend statement of claim - no question of principle. Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Category: Procedural and other rulings Parties: Timothy Visscher (Plaintiff) Maritime Union of Australia (Defendant) Representation: Counsel: T. Molomby SC, Ms L. Goodchild (Plaintiff) R.K. Weaver (Defendant) Solicitors: Roderick Storie Solicitors (Plaintiff) Slater & Gordon (Defendant) File Number(s): 2011/339947 EX TEMPORE Judgment On application for leave to further amend the Statement of Claim; see transcript p 635. 1This is an application on the eighth day of the trial to further amend the statement of claim. The plaintiff, Mr Visscher, in his existing pleading identifies two matters complained of. 2The first matter complained of is an article on the website of the defendant, the Maritime Union of Australia ("MUA"), placed there in February 2011. 3The second matter complained of is an article appearing on the website www.cootamundraherald.com.au around the same time. Paragraph 6 of the existing statement of claim pleads that the MUA "published an article entitled 'fears for sailors caught in cyclonic storm'", being that article on the Cootamundra Herald website. 4The particulars to existing paragraph 6, which are particulars of publication, indicate that the publication was said to be by the actions of the MUA in placing a hyperlink to the second matter complained of at the bottom of the first matter complained of, that is, the story on its website. The hearing has proceeded accordingly. 5It seems that until a particular point in the trial it was assumed, pretty much by everyone, that the article constituting the first matter complained of was placed on the website of the MUA by one of its safety officers, Mr Nielsen. Mr Nielsen is also quoted in the story that is the second matter complained of. 6However, during the course of Mr Nielsen's evidence he disclaimed that it was he who placed the first matter complained of on the MUA's website. He did, however, recount a conversation he had with the journalist whose name appears in the byline under the second matter complained of, in which he conveyed various information which appears to have been replicated in that story. He also stated that he had prepared a "press release" which in some unidentified way had been disseminated and apparently came into the possession of that journalist. 7Subsequent to his giving evidence the MUA called another witness, Ms Reynolds, who confirmed that it was she who had composed the first matter complained of and placed it on the MUA website. She said that she did so following her attention being drawn to the second matter complained of, that is, the article in the Cootamundra Herald. 8The evidence in the proceedings was all but completed by the evening of the seventh day, Monday, 4 November 2013. Thereafter another round of submissions was exchanged between the parties, there having been previous submissions exchanged. 9The MUA complained that one part of the plaintiff's submissions travelled beyond the pleaded case in that it attempted to attribute responsibility for the publication on the Cootamundra Herald website to the MUA not just by reason of the hyperlink, but also by reason of Mr Nielsen's conduct in communicating with the journalist who wrote that story. 10This was further debated before me today when the matter returned for oral submissions. Ultimately the plaintiff applied for leave to amend his statement of claim to plead a third matter complained of, being the statements made by Mr Nielsen to the journalist. He sought to plead that in speaking to that journalist Mr Nielsen intended that she should re-publish what he said and that such re-publication was the natural and probable result of their conversation. 11Further, the plaintiff also sought to plead that the third matter complained of, that is the conversation between Mr Nielsen and the journalist, conveyed a series of defamatory imputations which are to the same effect as those that have already been pleaded. 12I will not traverse the principles governing the making of an application to amend, suffice to state that they are surveyed in the decision in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175. 13One matter that concerned me was whether the necessity to make this amendment was something that either solely or substantially arose out of the evidence of Mr Nielsen that he was not the person that had placed the article constituting the first matter complained of on the MUA website. However, on reflection I do not think that is the case. In fact I think it is evident from the terms of the second matter complained of that it was always apparent that the journalist most likely published that article after having spoken to Mr Nielsen. Thus there was always the potential for the plaintiff to plead a case similar to that which they now seek to do, at least if they had administered interrogatories to Mr Nielsen to find out if he had spoken to the journalist and what he had said. 14From an early point in the trial it was clear that the MUA was taking the point that its responsibility for the second matter complained of was to be restricted in the manner identified in the existing particulars, namely that it was only responsible for those publications of the second matter complained of that occurred as a consequence of someone consulting its own website and then following the hyperlink. 15In the submissions I have heard concerning the matter, one point raised by the MUA was that if they had been apprised at an earlier stage of the possibility that they would bear a wider responsibility for the article appearing on the Cootamundra Herald website, then they would have given, or at least could have given, consideration to joining the relevant Fairfax entity that was also responsible for publishing that article. 16In that regard I note that there were previously proceedings between the plaintiff and Fairfax in relation to that article which have now been settled. 17Although it may have been theoretically possible for the MUA to have also joined Fairfax in relation to the limited means by which it is sought to be made responsible for the second matter complained of that is currently pleaded, I simply cannot put aside the fact that it was denied the opportunity of considering that course. 18Given that the plaintiff had the means to bring a pleading in this form at an earlier time, the late stage at which the application is made and the potential prejudice that has been identified, in my view it follows that the application to amend must be refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 November 2013