Barrett v TCN Channel Nine Pty Ltd

Background and reasons for delay

1. The Plaintiff and the deceased Jake Innes were close friends and workmates. On 29 June 2013 they socialised at the Bradbury Hotel where they had a number of drinks and played gaming machines and pool.
2. At about 11:30pm the two of them left the Hotel and travelled north in a car. At some point the car was speeding, and was noticed by a police vehicle. The police vehicle pursued the car in which the men were travelling. It was a wet night. The car travelled on the Hume Highway. Near the exit at Denham Court it crossed four lanes from right to left and then onto an off ramp. That off ramp is a relatively tight left hand bend restricted to 60kph with an advisory speed limit of 55kph. The car collided with the guard rail on the right and suffered extensive damage, spinning 180 degrees and coming to a stop in a position facing back towards the highway.
3. Jake Innes was found lying inside the car with his head against the driver's door. The Plaintiff had been ejected from the car and had been thrown several metres away. A later examination of the car by an expert demonstrated that neither of the men had been wearing a seat belt.
4. Jake Innes suffered such serious injuries including a depressed skull fracture and an unstable fracture to the neck that he died within a relatively short period of time of the accident.
5. The Plaintiff received very serious injuries during the accident. He remained in hospital for ten weeks. Amongst the injuries that he suffered was brain trauma. The Plaintiff was unable to recall the accident afterwards. In particular, he was unable to say whether he or Jake had been driving.
6. The Plaintiff swore an affidavit saying that he did not remember the accident at all. His last memory before waking up in hospital was of visiting his sister's place early on the day before the accident. When he woke up in hospital he was told he had been in a car accident.
7. A coronial inquest was held on 18 and 19 February 2015. The Coroner's findings were published on 27 February 2015. The Coroner found that the car had been driven by Jake Innes and he identified the evidence that pointed to that conclusion.
8. The Plaintiff seems first to have consulted a solicitor, his present solicitor, on 10 March 2014. That appears to have been with a view to the Plaintiff obtaining compensation for his injuries suffered in the accident. Since the Plaintiff could not advise the solicitor whether or not he was the driver of the vehicle the solicitor set about obtaining a copy of the police report. In her affidavit the solicitor said that she was also instructed at that time (March 2014) as to various publications on television and social media regarding the accident which resulted in the death of Jake Innes. The publications depicted the Plaintiff as being at fault.
9. On 22 May 2014 after obtaining a copy of the police report the solicitor sought advice from counsel. The police report indicated that the Plaintiff was the driver of the vehicle. A letter dated 22 May 2014 from the solicitor to the Plaintiff recorded that counsel had advised that the Plaintiff did not enjoy reasonable prospects of success because he was the driver of the vehicle. The letter advised that the solicitors would proceed to close their file. They provided advice in the letter about time limitations for the lodgement of a personal injury claim form and commencement of proceedings for damages for personal injury.
10. The solicitor saw the Plaintiff and his grandfather at their request on 20 March 2015. At that time they provided him with a copy of the Coroner's report. The solicitor read that the Coroner found that the Plaintiff was only a passenger in the motor vehicle. In those circumstances, the solicitor arranged a conference between the Plaintiff and Louise Goodchild of counsel to take place on 12 May 2015.
11. On 14 May 2015 the principal of the firm of solicitors wrote to the Plaintiff referring to the conference with Ms Goodchild. The letter said that Ms Goodchild had brought to the solicitor's attention a Channel Nine program which covered the subject accident and was defamatory of the Plaintiff. In the circumstances, the solicitor offered to act on behalf of the Plaintiff in a defamation claim against Channel Nine. On 19 May 2015 formal instructions were provided by the Plaintiff to investigate and prosecute a defamation case.
12. As mentioned earlier the Statement of Claim was filed on 20 October 2015.
13. The publication of the defamatory material is alleged to have taken place initially on 24 February 2014. Accordingly, the proceedings ought to have been instituted by 23 February 2015. They were, therefore, almost eight months out of time.

Submissions

1. The Plaintiff submitted that it was not reasonable for him to have commenced an action within one year because throughout that whole year it was not known whether he was the driver of the motor vehicle. In those circumstances no legal practitioner could certify that an action brought on the Plaintiff's behalf had reasonable prospects of success unless there was evidence that the Plaintiff was not the driver. There was no witness at the inquest who identified the driver of the car at any point in its journey.
2. The Plaintiff submitted that it was entirely beside the point whether or not he or anyone on his behalf took or attempted to take any action in relation to pursuing a defamation case within a year of the publication. Whether or not such action had been taken it would not have been reasonable to commence proceedings. The test is not whether the Plaintiff had approached the lawyer to investigate proceedings but whether it was reasonable to commence them within the year.
3. The Plaintiff submitted that once he has demonstrated that it was not reasonable to have commenced an action within one year the Court must extend the time and thereafter there is no discretion involved in that process. The Plaintiff submitted that the principle referred to in some of the cases that for the period after 12 months and up to three years some form of discretion is involved is erroneous. The principle derives from some remarks of Chesterman JA in Noonan v MacLennan [2010] 2 QdR 537; [2010] QCA 50. The principle is contrary to the natural reading of the section. The test in sub-s (2) is a novel test in relation to limitation statutes, but the legislature has not specified any test, whether the same one or a different one, for the period after one year provided the test stipulated in sub-s (2) is satisfied. The word "must" is significant. If some discretion had been involved the word "may" would have been used.
4. The Plaintiff submitted, alternatively, that if there was a test that applied to the period after one year it would not be a test any more rigorous than what was just and reasonable. That was the test provided by the Defamation Amendment Act 2002 (NSW) and is a test usually applied for provisions that enable extension to a limitation period.
5. The Defendant submitted that it is only the first and fifth publications that are affected by the limitation period because the second, third and fourth matters are said to be still available at the relevant URL addresses.
6. The Defendant submitted that there is no evidence of any complaint or request for advice about defamation proceedings apart from the reference at the conference of 10 March 2014 where the Plaintiff is said to have given some instruction as to various publication on television and social media. It does not appear, the Defendant submitted, that any advice about that was ever given.
7. The Defendant pointed to a transcript of the news broadcast on 24 February (the fifth defamatory matter) where the statement "but crash investigators now believe Luke may not have been driving after all" was made. The Defendant also points to an SMS exchange between the Plaintiff and the reporter where he said to her that the cops didn't think he was driving. The Defendant submitted that there was no evidence that anyone turned their mind to an action against Channel Nine in the 12 month period.
8. The Defendant submitted that there was a discretion as to the length of the extension that ought to be granted if the test for the first 12 month period was satisfied. There are two possibilities. The first is that it would not be a proper exercise of the discretion to extend time beyond the period within which it was thought unreasonable to have sued. The other view is that the discretion is not so fettered.
9. The Defendant said that the former view is the appropriate one because any other approach would make it easier for the Plaintiff to get an extension after the expiry of the first 12 month period.
10. The Defendant submitted that the accumulation of various periods of inactivity and delay means that the Plaintiff has not discharged his onus of establishing that it was not reasonable for him to sue on the five causes of action until 20 October 2015. The Defendant submitted that the Plaintiff's argument that proceedings could not be brought without knowing who the driver of the car was (because of the requirement to give a certificate about reasonable prospects of success) had two difficulties. The first is that no one considered that that was the basis for not commencing until an extension of time was needed. Secondly, the Plaintiff always knew that there was substantial doubt about whether he was the driver and had killed his friend. That was always his complaint about the program.
11. The Defendant submitted that after the first 12 month period had expired there was no explanation for the inactivity until October 2015. If the Coroner's report had actually been a real impediment to the defamation proceedings then they could have been commenced within weeks of its being handed down. The Defendant submitted that even if it was reasonable to wait until May 2015 when advice was received there is a further five month delay that is unexplained.

What is the proper construction of s 56A(2)?

1. Objection was taken by the Defendant to the receipt of the Coroner's report to prove the truth of the matters in the report. Section 91 of the Evidence Act 1995 (NSW) would exclude the evidence to prove the existence of any fact in the present proceedings. However, on the present application the issue is not whether or not the Plaintiff was the driver of the motor vehicle. The issue is what followed as a result of the Coroner's finding to that effect. The finding was put forward by the Plaintiff to justify why he had not acted during the first 12 months to sue for defamation and what he did thereafter as a result of the finding. In that regard, it is irrelevant whether the Coroner is correct or not in what he found. I indicated that I would admit the material on that basis. It is also on that basis that I have summarised the Coroner's findings in relation to the accident so that the background to the present legal dispute could be understood.
2. Until the Defamation Amendment Act 2002 (NSW) the time limit for defamation actions was six years. The 2002 Amendment Act introduced s 14B into the Limitation Act. Sub-section 3 limited the time to one year running from the date on which the defamatory matter was published. Section 56A gave a power to the Court to extend the time if the Court decides "that it is just and reasonable to do so". The time could be extended up to three years running from the date on which the defamatory matter concerned was published.
3. When the uniform Defamation Act 2005 (NSW) was introduced in 2005 it amended the Limitation Act so that s 14B and s 56A read as I have identified at [5] above. The test, that it was not reasonable in the circumstances for the Plaintiff to have commenced an action in relation to the matter within one year, was a novel test for an extension of time.
4. The problem was not only in the novelty of the test in the section but, in particular, in ascertaining the correct approach for the extension of time when the Plaintiff satisfied the test in relation to the first 12 month period. The section was silent in that regard. There have been a number of decisions in four separate jurisdictions endeavouring to ascertain what the section requires. Some matters have been clarified, others remain controversial.
5. It may first be accepted that the test for obtaining an extension is an objective one and the onus is clearly on the Plaintiff to satisfy it: Noonan v MacLennan at [20] and [65]; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [34]; Wookey v Quigley (No. 2) [2010] WASC 209 at [27]. Some authorities suggest that the test requires attention to the Plaintiff's actual reasons for not commencing proceedings on the basis that those reasons are a vital part of the circumstances pertinent to whether it was reasonable or not to bring the proceedings within the nominated time: Carey v Australian Broadcasting Corporation (2010) 77 NSWLR 136; [2010] NSWSC 709 at 48; upheld in Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176 at [56]-[57]; Lakaev v Denny [2010] NSWSC 1480 at [18]; Ritson v Gay & Lesbian Community Publishing Ltd & Ors [2012] NSWSC 483 at [15] and [56].
6. As far as the correct approach to the period after the 12 month period is concerned the approach that has most support in the decisions is that identified at an early stage by Chesterman JA in Noonan. His Honour said: [66] Even if one assumes, contrary to my opinion, that it would have been unreasonable for the respondent to commence proceedings while the university's grievance procedures were being pursued the conclusion would not assist the respondent. He lost, on that ground, six months. Assuming that the court was satisfied of what s 32A(2) required, time had to be extended. The length of the extension was a matter for discretion. It would not have been a proper exercise of discretion to extend time beyond the period within which it was thought unreasonable to have sued. In this case that would have produced an extension of time of six months, to October 2008. Such an extension would not assist the respondent who did not commence proceedings until a further eight months had elapsed.
7. That seems to have been the approach taken by Fullerton J in Lakaev at [56] and Beech-Jones J in Ritson at [21]-[25] and [62]. A two judge bench of the Court of Appeal of the Supreme Court of Victoria in Casley v Australian Broadcasting Corporation (2013) 39 VR 526; [2013] VSCA 182 considered at [73] that they should follow what Chesterman JA said in Noonan unless they thought his view was plainly wrong which they did not. Not surprisingly, the approach of Chesterman JA in Noonan was also followed by Zammit AsJ in McMahon v Watkinson [2014] VSC 123 at [57].
8. A different approach was taken by McCallum J in Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611. Her Honour noted at [35] that the decisions to which I have referred, and others, appeared to say that an extension could not be allowed beyond the point at which it ceased to be not reasonable in the circumstances for the plaintiff to have commenced an action. Her Honour then went on to say: [38] In my view, however, there is no warrant in the language of the section for concluding that the so-called discretion as to the term of the extension is constrained by the "not reasonable" test which applies in the first step in the task. I would accept, however, that the determination of the appropriate term of the extension should be informed by the expectation that a party would ordinarily be expected to take prompt steps to obtain access to the information required to commence proceedings: Wookey v Quigley (No 2) [2010] WASC 209 at [77] per Martin J; cf Ritson at [29].
9. In Pingel Fraser JA said at [34] that the selection of the period of any extension was discretionary. He did not elaborate because he said it was not relevant on the appeal before him. No other decision which I have been able to find takes a similar view to that of McCallum J in Riske.
10. The Plaintiff in the present matter submitted that, consistent with the view of McCallum J, there was nothing in the plain words of s 56A(2) that imported the "not reasonable" test into the period after the 12 month period. The Plaintiff submitted that Chesterman JA gave no reasons or provided no analysis for the view that he expressed and which has subsequently been taken up, also without reasons or analysis, by other courts.
11. Whilst I accept that the sub-section is silent about how the court is to assess the "period of up to three years" I consider that the present state of the law requires me to adopt the view of Chesterman JA. Although it was not strictly true, as the Court in Casley said that Chesterman JA's view was "the decision of an intermediate appellate court in another jurisdiction" in that neither of the other judges in Noonan made reference to his remarks in that regard, it is of some significance that the Victorian Court of Appeal and single judges in this State have followed Chesterman JA's view. Nor is it without significance that the NSW Court of Appeal in Carey appeared to accept what was said in Noonan with approval - see at [55]. However, for reasons which will become clear, whether the test stated by Chesterman JA is followed or whether the approach of McCallum J in Riske is followed, the Plaintiff fails in the present case.
12. The final matter to be noted from the authorities is the repeated statements that the test in s 56A(2) is a difficult one to satisfy: Rayney v Western Australia (No. 3) [2010] WASC 83 at [41]; Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [54]; Noonan at [67]; Ritson at [14]; Cassar v Network Ten Pty Ltd [2012] NSWSC 680 at [16]. I agree, however, with McCallum J in Houda v State of New South Wales [2012] NSWSC 1036 at [14] when her Honour differed from Chesterman JA's statement in Noonan at [51] that the circumstances must be compelling, a phrase picked up in Pingel at [87]. That, with respect, seems to be a gloss on the words of the statute.

Should an extension be granted?

1. I turn now to consider the facts of the present case. A significant difference between the parties was the relevance of the fact that no consideration appears to have been given by the Plaintiff to the question of defamation proceedings during the 12 month period. Whilst accepting that the test was an objective one the Defendant submitted that it was a relevant matter for a consideration of "the circumstances" referred to in the section that the Plaintiff apparently did not consider bringing such proceedings but made a conscious decision to await clarification of the matter concerning who the driver was. The Plaintiff submitted, on the other hand, that the objective nature of the test made it sufficient for the Court at the present time to look at the circumstances in that 12 month period to determine if it was not reasonable for the Plaintiff to have commenced the proceedings.
2. Section 345 of the Legal Profession Act 2004 (NSW) relevantly provided: 345 Law practice not to act unless there are reasonable prospects of success (1) A law practice must not provide legal services on a claim or defence of a claim for damages unless a legal practitioner associate responsible for the provision of the services concerned reasonably believes on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success. (2) A fact is provable only if the associate reasonably believes that the material then available to him or her provides a proper basis for alleging that fact. (3) … (4) A claim has reasonable prospects of success if there are reasonable prospects of damages being recovered on the claim. A defence has reasonable prospects of success if there are reasonable prospects of the defence defeating the claim or leading to a reduction in the damages recovered on the claim. …
3. Section 347 provided that providing legal services without reasonable prospects of success was capable of being unsatisfactory professional conduct or professional misconduct. Further, s 347(2) required a certificate by the legal practitioner that there were reasonable grounds for success prior to filing a claim. Section 348 had consequential costs provisions if a legal practitioner provided services that did not have reasonable prospects of success.
4. In Ahmed Simpson J said at [52]: [52] ... One can envisage circumstances in which it would not be reasonable for a plaintiff to commence proceedings within that time. One is where the plaintiff is unaware of the publication. Another is where the plaintiff is unable to identify the publisher or prove publication. (In this regard the obligations of legal practitioners under s 347 of the Legal Profession Act 2004 and the provisions of s 348 thereof are to be borne in mind.) …
5. Similarly, McCallum J in Houda at [31] considered that this professional obligation of legal practitioners to give due consideration to the prospects of success of a claim before filing process was a relevant consideration.
6. Again, in McMahon Zammit AsJ said at [55]: [55] Sections 347 and 348 of the Legal Profession Act 2004 (NSW) restrict legal proceedings being brought without reasonable prospects of success and provide for costs orders to be made against law practices acting without reasonable prospects of success. Such considerations may, by analogy, lead to a consideration of the overarching obligations in the Civil Procedure Act 2010 (Vic) ('the CPA') in cases such as these. It seems difficult to envisage the situation in which proceedings could be commenced against an unknown defendant at all, let alone on a proper basis in accordance with s 18 of the CPA.
7. In my opinion, the question of whether there were reasonable prospects for commencing proceedings is a significant issue when considering the test in s 56A(2). It is important in the present case because, unless the Plaintiff was not the driver of the vehicle, a claim that the Plaintiff had been defamed by having been said to have killed his best mate would be met completely by a defence of truth. In those circumstances damages would not be recovered and, by virtue of s 345(4) the conclusion must be that a claim would not have reasonable prospects of success.
8. The question of the Plaintiff's knowledge of the matter later relied upon to suggest that it was not reasonable to commence the proceedings within 12 months was considered by Beech-Jones J in Ritson. His Honour said: [17] One further aspect of Carey should be noted. At [56] McCallum J noted a submission that it was not reasonable for Mr Carey to have commenced defamation proceedings because he had initiated a complaint via the ABC's internal complaints procedure. McCallum J rejected that contention on the basis that "there is no evidence that it was a reason that Mr Carey in fact took into account" (at [56]). On this approach a matter or circumstance cannot lead to a conclusion that it was "not reasonable" to commence proceedings unless it was known to and operative upon the party seeking an extension. While that was no doubt the correct approach to the postulated circumstance in Carey I doubt that it is always the case. In this case there was a significant impediment to the commencement of defamation proceedings, namely the restrictions on the use of documents obtained in the course of proceedings discussed in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125. It seems that for part of the period in which the plaintiff asserts it was not reasonable to commence he was not aware of this impediment. However, even if, as here, a plaintiff is unaware of that restriction its existence seems to me to be a matter that informs the application of the test posed by s 56B. If the section does not place those who do not have access "to legal advice in a separate class of being excused from the limitation period that applies to those who do" (Carey at [54]) then an objective "circumstance" preventing the commencement of proceeding applies to all members of that one class who seek an extension. … [56] There is no evidence as to whether, as at 24 March 2010, the Plaintiff was aware of the impending 12 month time limit, the restriction imposed on him to only use the material obtained via summons in the ADT proceedings or the ability to apply to the ADT to be relieved of that obligation. For the reasons I have outlined I consider that an assessment of whether it was not reasonable to commence proceedings by 16 April 2010 requires an objective consideration of the position of a litigant faced with those circumstances (and the impending hearing of the appeal against those convictions). Such a litigant should be imputed with knowledge of those matters at least where he is legally represented and potentially where he is not (Carey at [54]). The litigant should be allowed a short period of time to take advice and make an expeditious application to the ADT for release of the documents. I expect that such an application would have been opposed by the Commissioner, as it was in 2011.
9. The Defendant pointed to material suggesting that the Plaintiff was aggrieved by the publications from an early time and to the doubt he had about the assertion that he was the driver. He could have sought, but did not seek, legal advice about the matters. However, the only real information the Plaintiff and his solicitor had was the police report which recorded the Plaintiff as the driver.
10. In my opinion, although the Plaintiff did not know of the provisions in the Legal Profession Act, and although his solicitor seemingly did not turn her mind to them at least in respect of defamation proceedings (she seems to have done so in relation to the personal injury proceedings) I consider that the Plaintiff demonstrates that it was not reasonable for him to have commenced the proceedings because if he and his solicitor had turned their mind to the provisions of the Legal Profession Act with regard to the defamation proceedings they would not properly have been able to commence proceedings during that period of time. It was only when the Coroner's report was published shortly after the end of the 12 month period that the provisions of the Legal Profession Act were able to be satisfied.
11. Following what Beech-Jones J said in Ritson, and having regard to the objective nature of the test, I consider that absence of actual consideration of the point at the time does not preclude reliance on it now. It is, however, of some significance that consideration was given to the issue regarding personal injury proceedings.
12. I am satisfied, therefore, that the Plaintiff has discharged the onus of demonstrating that it was not reasonable for him in the circumstances to have commenced the claims in defamation within one year from the date of the publication.

To what date should time be extended?

1. The next issue to be determined is the date to which time should be extended. I have already indicated earlier that I consider the weight of authority requires me to adopt the test stated by Chesterman JA at [66], that time should not be extended beyond the period within which it was unreasonable to have sued. There is a further reason for thinking that that is the appropriate test. As Mr Richardson of counsel for the Defendant put it, there is no basis for thinking that the test ought to be easier once the 12 month period has passed. It would be illogical only to require the Plaintiff to show something less onerous to justify a delay during the further two year period. Nor can the proper construction of the sub-section be that there is an obligation to extend time up to whatever date the claim is filed without any regard to delay and explanations for it after the 12 month period.
2. The Plaintiff's submissions that, because the test for the first 12 months is so rigorous and the period so restrictive, the legislature may have intended no further test be employed should be rejected. If it was not necessary to consider the period after 12 months at all for delay or associated matters the words "up to" would be otiose. On that submission, if the Plaintiff passed the hurdle of showing it was not reasonable to commence in the first 12 months, there would be an unqualified overall three year limitation.
3. As noted, the Coroner's findings were published on 27 February 2015. The Statement of Claim was not filed until 20 October 2015. The enquiry must be whether the Plaintiff has demonstrated that it was not reasonable for him to institute the proceedings until 20 October 2015 in all the circumstances.
4. The Plaintiff appears to have moved promptly after receipt of the Coroner's report. He and his grandfather requested a conference with the solicitor which took place on 20 March 2015, some three weeks later. The solicitor then arranged a conference with counsel on 12 May 2015. Although a delay of almost two months in that regard might be thought to be a leisurely approach to the matter, I am prepared to accept that it was first time that a conference could reasonably be arranged with a barrister with some speciality in defamation. That is a conclusion which is considerably favourable to the Plaintiff.
5. The principal of the firm wrote promptly to the Plaintiff on 14 May suggesting what ought to be done in relation to defamation proceedings. Instructions were then given on 19 May for the investigation and prosecution of a defamation case. Thereafter, the evidence is silent to explain why it was not until 20 October that proceedings were commenced. The evidence of Ms To, the Plaintiff's solicitor, was that she did not have any expertise in defamation and would retain a barrister or another solicitor to advise her about that matter. However, it may reasonably be concluded that counsel was aware of the strict limitation periods for commencing defamation proceedings and would have been aware that by the time counsel was consulted in May 2015 the Plaintiff was some months out of time.
6. This delay requires an explanation and none is available. The Plaintiff suggested that the delay might have been the lawyers' delay, and that it should not be visited on the Plaintiff himself. A general reference was made to limitation cases where it was said a Plaintiff could not be penalised for his or her solicitor's behaviour. There are two answers to this. First, there is no evidence at all about the five month period to draw such an inference. Secondly, the cases only held that the knowledge of a solicitor could not be imputed to a client for the purposes of "knowledge" requirements in ss60E and 60I of the Act: Spadotto and Co Pty Limited (in liquidation) v Raber [1995] NSWCA 442; CRA Ltd v Martignago (1995) 39 NSWLR 13 at 18.
7. Even if I was to apply the alternative approach of McCallum J in Riske and take the view that there was a general discretion which would, presumably, be informed by a just and reasonable test (the test most usually applied to extend limitation periods) the Plaintiff would not satisfy that test in the absence of any explanation for the delay from May to October 2015.
8. Section 56A(2) requires me to extend the limitation period if the test has been satisfied in relation to the 12 month period. On the evidence before me time should be extended to 30 June 2015, a period of some six weeks after instructions were given by the Plaintiff on 19 May 2015. That conclusion necessitates a determination that it was not reasonable in the circumstances for the Plaintiff to have commenced his action before 30 June 2015. Such a determination is favourable to the Plaintiff because it allows for the late conference with counsel and a six week period to draft and file the originating process. That will not, however, avail the Plaintiff.

Conclusion

1. The result must be, therefore, that the application be refused with regard to the first and fifth counts claimed.
2. Accordingly, I make the following orders: (1) Dismiss the Plaintiff's Notice of Motion filed 29 January 2016. (2) The Plaintiff is to pay the Defendant's costs.

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: 28 November 2016