Ingram v Ingram

The circumstances leading to the commencement of these proceedings

1. The plaintiff and her family are members of the Australian indigenous community. The defendant is the plaintiff's biological aunt and an elder in that community, known as "Aunty Norma".
2. Neither party can afford this litigation. In his affidavit of 2 December 2022, Mr Kalantzis states that the plaintiff "is of limited means and has struggled financially to meet fees and expenses" (paragraph 8). The defendant is a pensioner living in public housing and is reliant upon pro bono representation in these proceedings.
3. Both parties have had difficult lives, in terms of the wider culture of loss impacting on indigenous members of the community, as well as personally. The most recent of these losses occurred in September 2020, when the plaintiff suffered the loss of her adult son to suicide, which impacted on the whole family. Her grief was aggravated when her daughter (from whom she is estranged) blamed her for his suicide. Since her son's death, the plaintiff has been under the care of a psychologist and her treatment continues to this day. She has told her solicitors that she is "barely through the shock whilst her grief will last forever" (affidavit of Mr Kalantzis, paragraph 5). This has made it difficult for her solicitors to obtain instructions.
4. On 4 December 2020 the plaintiff's daughter, who operated a private Facebook page, made a post critical of her mother. That post is as follows: "When you get a call from police your own mother made up another story to report and is trying to get you charged… again! This is probably the 10th time now. Nice try sue but you lose again. For those family members feeling sorry for her still, sending her comments I've made, screen shot this! This is what family violence looks like people."
5. In response to the plaintiff's daughter's post, the defendant published two comments. The text of the first matter complained of as set out in Schedule A of the statement of claim is as follows: "The harassment has never stopped. Jarin has to look after her own health and her lovely families [sic] health as well. Jarin has to do what has to do to protect her family. Know that we love you sweetie."
6. Facebook records that Donna (not the defendant) Ingram and 69 others reacted and that there were 79 comments. I assume, from the common surname, that "Donna Ingram" is another family member, as see this as indicating that those who were commenting were likely to be friends or relatives, as opposed to total strangers, and thus likely to know who the unnamed plaintiff is.
7. The text of the second matter complained of as set out in Schedule B of the statement of claim is as follows: "I can't believe that Jarin has put up with this torment all her life. Her grandmother for many, many years. It's total a [sic] abuse and extremely unhealthy. What dies [sic] this woman want from Jarin??? Is there a psychiatrist out there that can enlighten us because it's not just Jarin who feels it and is affected by it, we all do is that what she want [sic]. There is no way I would be alone with her because I would fear what she could do to me."
8. Facebook records that 51 people reacted but there is no identification of precisely who each of these persons were. I assume, from the particulars of identification, that they are likely to be friends or relatives or persons likely to know who the unnamed plaintiff is.
9. The plaintiff instructed solicitors to write to the defendant on 21 January 2021 asking her not to make any further posts. The plaintiff says that this demand was ignored but the defendant says she did not reside at that address and did not receive the letter. The plaintiff never followed up the failure to reply.
10. There is a limitation period of one year on defamation proceedings. Prior to 1 July 2021, this was not a problem for plaintiffs as there was no "single publication rule", but amendments to the relevant legislation which took effect from 1 July 2021 meant that time was now running for the plaintiff if she was to commence defamation proceedings.
11. On 11 November 2021, the plaintiff's new solicitors (who currently still act for her) sent the defendant a concerns notice. This notice set out the text of the matters and the imputations arising and sought an apology and an unspecified amount of compensation "to be determined by the Federal Court of Australia" if the parties could not agree, as well as legal costs. This is followed by the observation that courts in New South Wales and Victoria had awarded "substantial damages" for online publications including social media.
12. The concerns letter is described as an offer to make amends, and I note briefly that there are difficulties with it functioning as such, in that the defendant is only given 14 and not 28 days (s 14 of the Defamation Act 2005 (NSW)).
13. On or about 24 or 25 November 2021 the defendant responded as follows: "I have received your letter dated 11 November 2021. I was very sorry to receive your letter. As soon as I read your letter, I asked [your daughter] to delete the post, which meant that the comments were also deleted. I have also now deactivated my Facebook account. I posted those comments in December 2020 during a time of great family loss, stress and trauma. It was a very difficult time for me and my family. I really regret posting the comments. While I don't think that the comments mean all the things that you say in your letter, I would really like to resolve this and apologise so that we can put this family matter behind us. But in any event, whether or not what you say is right or wrong legally, I would like you to tell [the plaintiff] that I apologise for the comments and for any hurt or distress I caused her. As I said, I have deleted the comments, and I have no intention of putting up anything of the kind again. I am a pensioner and live in public housing, so am not in a position to make any payment to Suzanne. I hope that this resolves Suzanne's concerns. Norma Ingram"
14. It would appear that the posts were in fact taken down and the account deleted. Thereafter, the matter languished. The 12-month limitation period provided by s 14B of the Limitation Act 1969 (NSW) expired in relation to the publication made on 4 December 2020, although there was still a window to sue for publications up to and on 1 July 2021.
15. The plaintiff's solicitors were aware of limitation issues and also of the coming changes to the legislation. There was some further correspondence of a 'without prejudice' nature on 8 February and 6 May 2022; the letter dated 6 May 2022 attached a draft statement of claim. Following this, the defendant obtained pro bono representation from Clayton Utz (who appear for the defendant in these proceedings but on the specifically limited basis identified in their submissions on her behalf). On 19 May 2022, Clayton Utz informed Mr Kalantzis that, while they had just received instructions to act for the defendant, they did not currently have instructions to accept service "at this stage", although they sent further correspondence on 27 and 30 May 2022.
16. The plaintiff commenced these proceedings on 1 July 2022. No extension of the limitation period was sought.
17. There was an additional problem. The statement of claim, which had yet to be served became invalid for service pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 6.2(4)(b)(ii) on 2 August 2022, which requires service in one month.
18. The proceedings came before me on 3 August 2022 in this state. I extended time for the plaintiff to serve the amended statement of claim to 8 September 2022. That order, made ex parte, is one of the two extension of time orders that the defendant now asks me to set aside.
19. The solicitors for the plaintiff did not, however, serve the statement of claim. There was no attempt to send the statement of claim to Clayton Utz, or to the defendant's email, or to personally serve it on the defendant until 8 September 2022, when the plaintiff's solicitors purported to serve an amended statement of claim by sending it to Clayton Utz. The explanation for the delay was the need for amendments to be made to the pleading.
20. There was further correspondence in September between the parties' legal representatives, in the course of which Clayton Utz again advised that they did not have instructions to accept service.
21. On 23 September 2022, as the statement of claim in its amended form had not yet been served, I made a second order extending time for service of the statement of claim until 29 September 2022. That is the second extension of time order which the defendant now asks me to set aside.
22. On 27 September 2022, the plaintiff's solicitors retained a process server who attempted to serve the defendant with the amended statement of claim and then provided an affidavit to the court. Mr Kalantzis moved on this affidavit, as well as an affidavit from a member of his staff, and sought an order for substituted service.
23. On 6 October 2022, I made orders for substituted service of the amended statement of claim as follows: 1. Grant leave to the plaintiff to file in court Affidavit of Luca Circosta and Affidavit of Christopher Zadravec. 2. By reason of the matter set out in the affidavit of Christopher Zadravec, I make order pursuant to UCPR r 10.14 for substituted service to allow the Amended Statement to be served by email addressed to the Defendant's solicitors, Mr Douglas Bishop and Ms Bryony Dewar-Leahy at the email addresses set out in the paragraph 18 of the Affidavit of Mr Circosta. 3. I direct the plaintiff to notify the defendant of these orders by the following steps: 1. Service upon the defendant at the two email addresses supplied above; 2. The service of these documents is to be accompanied by a letter outlining the plaintiff's proposed timetable for these proceedings including any application for an extension of time to commence these proceedings. 3. Such documents to be served by 5pm 6 October 2022. 1. Costs of today reserved. 2. Matter stood over to 20 October 2022 for further orders including a timetable.
24. On 19 October 2022, following requests from the solicitors for the defendant, the solicitors for the plaintiff sent them a copy of the original statement of claim as well. On that same date, 19 October 2022, the defendant filed the notice of motion seeking the orders set out at [1] above.

The relevant provisions of the UCPR

1. UCPR r 1.12 provides: "1.12 Extension and abridgment of time (cf SCR Part 2, rule 3; DCR Part 3, rule 2; LCR Part 4, rule 2) (1) Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court. (2) The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires."
2. UCPR r 6.2 provides: "6.2 How proceedings commenced (cf SCR Part 4, rules 1 and 3, Part 7, rule 7; DCR Part 5, rules 5 and 6; LCR Part 5, rule 1) (1) Subject to these rules, the practice notes and any other rules of court, a person may commence proceedings in the court by filing a statement of claim or a summons. (2) Subject to these rules, the practice notes and any other Act or law, the plaintiff may choose whether to commence proceedings by statement of claim or by summons. (3) Originating process must be served on each defendant. (3A) An originating process served in accordance with subrule (3) must include the following - (a) the seal of the court on the first page (whether an original sealed copy or a photocopy of a sealed copy), (b) the case number or unique identifier, (c) the listing date (if allocated by the court registry). (4) Subject to subrule (5), originating process is valid for service - (a) in the case of proceedings in the Supreme Court, the Land and Environment Court, the Dust Diseases Tribunal or the Local Court, for 6 months after the date on which it is filed, or (b) in the case of proceedings in the District Court - (i) for 6 months after the date on which it is filed - (A) if it is a statement of claim seeking relief in relation only to a debt or other liquidated claim, or (B) if the defendant (or at least one of the defendants) is to be served outside New South Wales, or (ii) for one month after the date on which it is filed, in any other case. (5) Failure to serve originating process within the time limited by these rules does not prevent the plaintiff from commencing fresh proceedings by filing another originating process."
3. UCPR r 10.1 provides: "10.1 Service of filed documents (cf SCR Part 15, rule 28) (1) Unless the court orders otherwise, a party that files a document must as soon as practicable serve copies of the document on each other active party. (2) In the case of proceedings in the Local Court, an originating process may, and a defence must, be served on the other parties, on behalf of the party by whom it was filed, by an officer of the Local Court. Note - See rules 10.7 and 10.8 as to how service is to be effected by a court. (3) Despite subrule (2), a defence that is filed in proceedings in the Local Court by means of Online Registry (within the meaning of Part 3) must be served on the other parties by the party that filed the defence rather than by an officer of the Local Court."
4. UCPR r 12.11 provides: "12.11 Setting aside originating process etc (cf SCR Part 11, rule 8) (1) In any proceedings, the court may make any of the following orders on the application of a defendant - (a) an order setting aside the originating process, (b) an order setting aside the service of the originating process on the defendant, (c) an order declaring that the originating process has not been duly served on the defendant, (d) an order discharging - (i) any order giving leave to serve the originating process outside New South Wales, or (ii) any order confirming service of the originating process outside New South Wales, (e) an order discharging any order extending the validity for service of the originating process, (f) an order protecting or releasing - (i) property seized, or threatened with seizure, in the proceedings, or (ii) property subject to an order restraining its disposal or in relation to which such an order is sought, (g) an order declaring that the court has no jurisdiction over the defendant in respect of the subject-matter of the proceedings, (h) an order declining to exercise jurisdiction in the proceedings, (i) an order granting such other relief as the court thinks appropriate. (2) Such an order may not be made unless notice of motion to apply for the order is filed by the defendant within the time limited for the defendant to enter an appearance in the proceedings. (3) Notice of motion under subrule (2) - (a) may be filed without entering an appearance, and (b) must bear a note stating the applicant's address for service. (4) The making of an application for an order under subrule (1) does not constitute submission to the jurisdiction of the court."
5. UPCR r 19.1 provides: "19.1 Amending a statement of claim (cf SCR Part 15, rule 12, Part 20, rules 2 and 2A; DCR Part 17, rules 2 and 2A; LCR Part 16, rule 2) (1) A plaintiff may, without leave, amend a statement of claim once within 28 days after the date on which it was filed, but, unless the court otherwise orders, may not amend it after a date has been fixed for trial. (2) If a plaintiff amends his or her statement of claim under subrule (1) after the defendant has filed a defence, the defendant may amend his or her defence at any time within 14 days after service of the amended statement of claim. (3) A plaintiff's right to make an amendment under subrule (1) is not affected by any amendment the plaintiff has made under rule 7.22."
6. An important part of the issues in dispute is the determination of the nature and extent of the publications in terms of actionability. This requires a careful consideration of the degree to which any of the publications made by the defendant are actionable at all.

The relevant provisions of the Limitation Act 1969 (NSW)

1. Although there is not an application for an extension of time in the formal sense, limitation issues arise by reason of the challenge to the court exercising its discretion to extend time for service of the statement of claim when the proceedings were in fact mostly, if not wholly, out of time.
2. The complexity of this argument is such that Ms Barnett reduced it to a diagram, which is as follows:
3. The complexity arises from the inclusion, in the amendments to the Act from 1 July 2021, of a definition for the "date of publication" to Schedule 4 Clause 1 (which states the limitation period runs for one year from the date of publication). The new definition states that date of publication for electronic material means the day on which the matter was "first uploaded for access or sent electronically". The limitation period thus runs from the date the matter is first uploaded to a digital platform, rather than the date of download by a recipient, further preventing a "reset" of the limitation period.
4. As the diagram demonstrates, by reason of the amendments to the Act and specifically the inclusion, from 1 July 2021, of the single publication rule, the plaintiff's statement of claim was filed on the last possible date in terms of there being any publications at all, namely 30 June 2021. All publications between the period for December 2020 and 29 June 2021 are statute-barred by reason of s 14B of the Limitation Act.
5. This means that the plaintiff's claim, unless an extension of time for this earlier period is granted, is limited to the 12 month period preceding the commencement of these proceedings, namely 30 June 2021 to 1 July 2022.
6. However, proof of publication must be evidenced by particulars of downloading of the matters complained of during this period. It is no answer for the plaintiff to complain about damage to reputation or hurt to feelings for the period prior to 30 June 2021 unless an extension of time is granted. The plaintiff's difficulty is that, in practical terms, the likelihood of anyone reading one or the other of these two small posts made on 4 December 2020 over a period six to eighteen months later. This means that, in its current form, the particulars stated by Sackar J to be essential in Newman v Whittington [2022] NSWSC 249 have not been provided.
7. It is not possible to rely upon identification prior to 30 June 2021 as no extension of time has been granted for this.

The relevant principles of law

1. Ms Barnett submits that, in challenging the orders extending time for service, I am entitled to deal with every issue de novo. This means that I am not simply looking at whether or not the order was made properly, but whether the state of the proceedings is such that no extension should be granted at all.
2. This is explained by Ipp JA in Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 at [14] as follows: "[14] It is not apparent whether, in dealing with the application to discharge the orders extending time for service, Rothman J was acting under UCPR r 36.16(2)(b) (which empowers the Court to set aside an order made in the absence of a party) or s 121(3) of the Supreme Court Act 1970 read with UCPR r 49.19. Whatever the position in this regard, Rothman J treated the application as not requiring demonstration of error; he dealt with it on the basis that all issues were de novo before him. No issue was taken on appeal concerning his Honour's approach and I accept that it was correct."
3. The principles governing the exercise of power under r 12.11 are set out by Sackville AJA in Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liquidation) v Publishing and Broadcasting Ltd [2012] NSWCA 79 ("Weston") at [20] as follows: "[20] The principles governing the exercise of the power conferred by UCPR, r 12.11(1)(e) can be summarised as follows: (1) The principles relevant to an application to extend time for service under r 1.12 also apply to a motion pursuant to r 12.11(1)(e) to discharge orders for extension: Kirk, at 402 [58], per Tobias JA (with whom Macfarlan JA and Sackville AJA agreed). (2) In exercising the discretion conferred by r 12.11(1)(e), the court should consider: "the attempts that have been made at service, the length of the delay, the reasons for the delay, whether the delay was deliberate, whether notice was given to the defendant, the conduct of the parties generally and the hardship or prejudice caused to the plaintiff by [discharging the orders] or to the defendant [by refusing to discharge the order]." Buzzle, at [43], per Ipp JA (with whom Tobias and McColl JJA agreed) cited with approval in Kirk, at [94]. (3) The discretion is to be exercised in the context of, and by reference to, the statute by which it is conferred: Buzzle, at [28]. Consequently, in New South Wales, ss 56-59 of the Civil Procedure Act 2005 ("CP Act") require a judge exercising the discretion to have regard to whether the relevant party has: (a)diligently pursued the object of disposing of the proceedings in a timely way; (b)used, or could reasonably have used, available opportunities under the rules or otherwise, to avoid delay; and (c)reasonably implemented the practice and procedure of the court with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination: Buzzle, at [36]. (4) The court must take into account the policy considerations underlying the relevant limitations statute. Thus, defendants or potential defendants should be made aware of claims against them within a reasonable time and liquidators who do not commence proceedings until just before expiry of the limitation period should be especially diligent in pursuing prompt service: Buzzle, at [37]-[39]; cited with approval in Kirk, at 410 [98]-[99]. (5) It is for the court and not one of the litigants to determine whether there should effectively be a stay of proceedings. Accordingly, it is generally: "inappropriate to allow an extension of time for the service of a ... statement of claim where a significant cause of the delay has been the willingness of the plaintiff to do nothing about service while awaiting a decision from a litigation funder as to whether or not to provide the necessary funds. Were that to be regarded as a good reason to extend time, the Court would be allowing plaintiffs to arrogate to non-parties the right to decide the period by which the time for service of a writ should be extended. That would be fundamentally in conflict with the Court's duty to exercise, alone, the discretion conferred upon it." Buzzle, at [82] cited with approval in Kirk, at 411 [101]. (6) Ordinarily, it is not a good reason for delay that a plaintiff wishes to hold up proceedings while some other case is tried: Buzzle, at [90]. However, this is not an inflexible rule: Kirk, at 411 [102]. (7) If a defendant knows that claims have been made against him or her and understands the nature of the claims that have been made, that may mitigate the prejudice the defendant might otherwise suffer by reason of a delay in service: Kirk, at 415 [123]."
4. As to the kinds of factors that can be taken into account, these include: 1. The conduct of the parties generally (Weston at [20]) and in particular the explanation for the delay in service, is relevant. There needs to be an explanation for the delay. Mr Kalantzis proffered the explanation that the solicitor who worked for him had left the practice. He was not, however, alone, in that he had a graduate student working for him who became a solicitor in October 2022. That explanation should, however, relate to service attempts, which is not the evidence here. There does not appear to have been any attempt to serve the defendant personally in relation to the original statement of claim, or to ask her to accept service via email, until after the first application for extension. 2. The conduct of the defendant will also be relevant. Was the defendant hiding from service by not agreeing to allow Clayton Utz to accept service? There is no evidence to suggest this. Her prompt and courteous reply to the concerns notice and her action in seeking pro bono legal advice suggest otherwise. 3. The fact that a limitation period has expired (Hunter v Hanson [2014] NSWCA 263 at [57] and the policy considerations under such a statute are relevant. Given the strict nature of defamation limitation legislation, this is a significant factor. The test is a high one to satisfy. There must be some doubt, given the nature of the explanation for the delay being Mr Kalantzis's workflow problems, whether an extension of time to commence these proceedings would be granted, as Mr Dean acknowledged. 4. Legislative provisions and principles of law in relation to the impact of delay are relevant. The approach to delay in defamation proceedings is different to other areas of the law. For example, it can reduce damages significantly (Rader v Haines [2022] NSWCA 198 at [39], citing McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 96 - 97. Similarly, the requirements in the Civil Procedure Act 2005 (NSW) for justice to be "quick" is picked up by a number of other rules, such as UCPR r 10.1, which requires a party to serve court documents as quickly as possible, and by the strictness of the one-month service rule for proceedings commenced in the District Court.
5. The court also takes into account the fact that such applications are generally made ex parte and there is little or nothing that a judge hearing an ex parte application for time to extend service can do, apart from agree to the order. In addition, the plaintiff whose delay in service has led to the application bears the onus of establishing the entitlement of the order extending time for service. If the extension of time is challenged, the party who obtained the ex parte order cannot expect that the court will simply rubber-stamp its previous order.

The explanation for delay proffered by the plaintiff

1. In his affidavit of 2 December 2022, Mr Kalantzis refers to the following: 1. The plaintiff's poor mental state and deep distress, which makes it difficult to obtain instructions, and her limited finances, which mean that she has difficulty paying her legal advisers. She is, however, deeply distressed by the publications and what she sees as a campaign against her by the defendant (although no other publication is sued upon). 2. Mr Kalantzis's own workplace problems, including a solicitor who ceased working for him in about May 2022. 3. Mr Kalantzis's attempts to serve the defendant by process server on 29 September 2022 (which was after my first order extending time made in August). 4. The action was very important for his client, who sought vindication from being able to show the judgment to others in the community, regardless of whether or not the defendant could pay damages or legal costs.
2. As to the plaintiff's distress, in practical terms, all that the plaintiff had to do was to give Mr Kalantzis copies of the matters complained of and information as to who downloaded them. Mr Kalantzis could then do the rest. There were no complicating factors from legislative amendment or other difficult legal issues at the time he was instructed; these crept into the proceedings as a result of his delays.
3. Many solicitors have been impacted by delay due to the pandemic and general disruption of the legal system since 2020. Mr Kalantzis lost an employee, but he still had a graduate student working for him. The delay in retaining a process server and the decision to amend rather than serve are the reasons for the delay, but these reasons are not staff-related.
4. The defendant raises the following: 1. As noted in the submissions of 27 October 2022, on its face, the statement of claim cannot identify a single reader who downloaded the matter complained of during the restricted timeframe that the plaintiff can rely upon for her cause of action. This remains the case despite the plaintiff having been on notice of this problem since the submissions of 27 October 2022 were served. Failure to provide proper particulars of downloading would ordinarily result in the dismissal of part of or the whole of the claim, as occurred in Newman v Whittington. Where this is drawn to the attention of a judge from whom an extension of time is sought, this lacuna should be fatal. 2. The causes of delay have nothing to do with service problems or the plaintiff's personal circumstances. The plaintiff was able to retain Shine Lawyers in January 2021 to send a concerns notice and she was also able to instruct Mr Kalantzis within the limitation period for the same purpose. Mr Kalantzis was able to draft and file the statement of claim but made no attempt at service of the defendant until 27 September 2022, between the first and second extension of time granted. The failure to attempt service before that time should be fatal. It is no excuse for Mr Kalantzis to say that he needed to amend the statement of claim, as he should have served what he had filed in any event. The statement of claim is still defective in that there are no particulars of downloading, the schedules of publications incomplete and the imputations poorly drafted. 3. The extensions of time occurred when the defendant was consulting Clayton Utz, who asked to be informed of any orders, but Mr Kalantzis did not forewarn them that he was seeking extensions of time. 4. The utility of the claim, even if the plaintiff is able to locate persons who downloaded the publications, is questionable. Neither party would be in a position to pay costs orders and the defendant, a pensioner in Government housing, could pay neither damages nor costs. At present she had pro bono assistance but if that ceased, she would be dependent upon finding other pro bono lawyers or seeking assistance from the court. 5. The utility of a court judgment in circumstances such as the present was doubtful. The likelihood was that nobody had seen or thought about these publications since shortly after they were made (or at least after removal in November 2020) was doubtful. All that these proceedings would do would be to publicise them further to an already grieving family where battle lines were fairly clearly drawn. 6. Courts were entitled to take into account the overriding purpose of the Civil Procedure Act 2005 (NSW) in terms of s 56 as well as the principles of proportionality of costs set out in ss 56 - 61. In those circumstances, the court should exercise its distention to discharge the orders made for extension of time for service of the statement of claim. 7. The impact of the delay on these proceedings would lead to enormous legal complexities at the hearing. Resolution of the parties' arguments in the absence of legal assistance would place a heavy burden on the court if one or both parties were not represented.

Resolution of the issues

1. The delay has imposed a degree of complexity in proceedings which already suffered from significant pleading problems. Some of these arise from the overlap of the matters complained of with the 2021 amendments to the Act.
2. Even with legal assistance, the plaintiff is struggling with these complexities. For example, Ms Barnett had to point out to Mr Kalantzis that the 56-day extension now set out in s 14B did not apply given that the first publication occurred before the amendments coming into effect on 1 July 2021. She also had to point out that it was not the case, as the plaintiff sought to argue, that both versions of s 56A of the Limitation Act applied. When I suggested that s 46 of the Act meant that all publication should be determined under the pre-amendment legislation, this took both parties by surprise.
3. Another delay-related problem is the absence of information about the nature and extent of publication. Although Mr Kalantzis submitted to me that the impact of the matters complained of on his client was devastating and required resolution in a defamation trial, he cannot point to a single person who read the matter complained of during the period the subject of the claim. The plaintiff complains about events which suggest publications by other members of the family (such as her estranged daughter) but the defendant cannot be liable for defamatory statements of a similar nature by persons other than herself (Associated Newspapers Ltd v Dingle [1962] 2 All ER 737; [1964] AC 371).
4. A third significant delay factor is the difficulties the plaintiff faces in any application for an extension of time to commence these proceedings under s 56A of the Limitation Act. The plaintiff was aware of the matters complained of almost immediately and I consider the plaintiff's failure to seek leave to commence these proceedings will be a significant legal battle. While I do not wish to prejudge this application, the explanations proffered by Mr Kalantzis (losing a full time employee and having difficulties communicating with his client) are matters which courts hearing such applications generally reject.
5. A fourth factor is that the impact on damages of delay in commencing and prosecuting a claim for defamation notoriously reduces the amount of damages to be awarded: McCarey v Associated Newspapers Ltd (No 2) (11 months delay). In Campbell v Regional Publishers Pty Ltd (Supreme Court of NSW, 30 October 1998, unrep), Levine J stated: "Where the plaintiff has been "late" in the initiation of proceedings, first, the quality of the remedy sought in defamation will or could be, severely affected both in terms of quantum and costs; and secondly, the requirement in a plaintiff diligently to prosecute the action will be one that demands strict adherence to the Rules of Court or directions given."
6. As to future case management, there is nothing to stop the parties from continuing to delay. Neither side is in a position to pay a costs order of any substance. If the proceedings are rendered even more complex and lengthy by reason of delay-related problems, there is a risk that one or both the parties may lose their current representation, and the burden of conducting these proceedings will be placed upon the court, in much the same way as occurred in Bodenstein v Hope Street Urban Compassion [2014] NSWDC 126 (at [1]-[13]).
7. Then there are the difficulties arising from the absence of evidence of downloading by third parties for the limited period during which the plaintiff is entitled to bring a claim. While the plaintiff may ask the court to infer from a "platform of facts" (Sims v Jooste (No 2) [2016] WASCA 83) that there are persons who read the matters complained of, the reality is that there is currently no evidence even of this kind before the court.
8. Mr Kalantzis's explanation of office problems, ill health and absence overseas overlooks the real reasons for delay. First, speed was imperative, in that the plaintiff consulted him nearly 12 months after the initial publication, at a time when changes to the law to introduce the single publication rule were on foot, and without providing him with essential information about the nature and extent of publication to third parties. Second, having commenced proceedings for defamation, he should have served the statement of claim immediately, conformably with UCPR r 10.1, rather than amend the claim and continue to seek orders extending time for service. Third, he should have been more proactive about serving the claim.
9. Looking at the checklist in Weston v Publishing and Broadcasting Ltd at [20], nearly all of the factors favour the defendant. As well as the issues of fact arising from the circumstances of the case (set out above), which are relevant to [20(2)]), the policy considerations underlying the limitations legislation (at [20(4)], the Civil Procedure Act (at [20(3)]) and the Defamation Act are important. While I take into account that the defendant had some knowledge of the possibility of a claim (at [20(7)], the plaintiff delayed nearly 10 months after requesting the defendant to take down the matter complained of. That further degree of delay is unacceptable.
10. Conformably with my findings arising in relation to the checklist set out in Weston v Publishing and Broadcasting Ltd at [20], the defendant is entitled to orders setting aside the extension of time for service of the statement of claim made by me ex parte in August and September 2022.
11. The defendant is also entitled to orders setting aside the order for substituted service on the solicitors currently representing her pro bono. There was no urgency or difficulty with service of the plaintiff; the problem was the delay in conducting the litigation.
12. The effect is that the statement of claim is stale and the causes of action time-barred. The proceedings are accordingly struck out and dismissed.
13. Costs should follow the event. I have made orders to this effect but with liberty to apply.

Order: 1. Pursuant to rule 12.11 of the Uniform Civil Procedure Rules 2005 (NSW), the orders made on 3 August 2022 extending the time for service of the Statement of Claim and granting the Plaintiff leave to serve the Amended Statement of Claim are discharged. 2. The order made on 23 September 2022 extending time to serve the Amended Statement of Claim is discharged. 3. The order made on 6 October 2022 for substituted service of the Amended Statement of Claim is discharged. 4. The order for service of the Amended Statement of Claim on the Defendant's solicitors, Mr Douglas Bishop and Ms Bryony Dewar-Leahy on 6 October 2022 is set side. 5. Both the Statement of Claim filed 1 July 2022 and the Amended Statement of Claim filed 25 August 2022 are struck out and dismissed. 6. The Plaintiff is to pay the Defendant's costs of this notice of motion and of the proceedings, with liberty to apply.

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: 22 December 2022