Jay v Petrikas

District Court of NSW|2019-10-31

36 Johnston v Vintage Developments Pty Ltd [2006] FCAFC 171 Kaiser v George Laurens (NSW( Pty Ltd [1982] 1 NSWLR 294 Lakaev v Denny [2010] NSWSC 1480 Murtaough v Bentham [2004] NSWSC 753 Noonan v MacLennan (2010) 2 Qd R 537 Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 Rayney v The State of Western Australia (No 3) [2010] WASC 83 Richards v Naum [1964] 1 QB 620 Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611 Slaveska v State of Victoria and Others [2015] VSCA 140 Spedding v Dailymail.com Australia Pty Ltd [2016] NSWSC 1963 State of Queensland v O'Keefe [2016] QCA 135 Szymczak v Balijepalli [2019] FCA 203 Szymczak v Balijepalli (No 2) [2019] FCA 1093 Van Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953 Wookey v Quigley (No 2) [2010] WASC 209 Zaghloul v Woodside Energy Limited (No 8) [2019] FCA 971 Category: Procedural and other rulings Parties: First Plaintiff: Graeme Jay Second Plaintiff: John Peters First Defendant: Chris Petrikas Second Defendant: David Ryan Third Defendant: Ian Wedge Representation: Counsel: Plaintiff: Mr R Rasmussen Defendants: Mr M Richardson

Solicitors: Plaintiff: A R Conolly & Company Defendants: Crown Solicitor's Office File Number(s): 2019/72815 Publication restriction: None

The applications before the court

The plaintiffs bring applications under s 56A(2) of the Limitation Act 1969 (NSW) (and/or under s 63(2) or s 16 of the Civil Procedure Act 2005 (NSW)) to extend time for commencement of proceedings for defamation against Ms Karen Hodges, such claim to form part of an existing claim for injurious falsehood against three other defendants, and for correction of an irregularity under s 63(2) or s 16 of the Civil Procedure Act 2005 (NSW). The limitation period is agreed to have expired on 6 September 2017 and the extension and s 63(2) orders sought would permit the plaintiffs to rely upon the proposed amended statement of claim in these proceedings which was filed (without leave) on 30 August 2019.

The circumstances leading to the commencement of proceedings

The cause of action pleaded against the three defendants in the statement of claim filed on 6 March 2019 is a claim for injurious falsehood arising from statements made by the defendants in the course of workplace-related complaints made on 6 September 2016. There is a six-year limitation period for injurious falsehood claims, which will expire on 6 September 2022. Ms Hodges, the proposed fourth defendant, also made a statement (see paragraph 4 below), but was not sued for defamation or injurious falsehood for its contents.
The twelve-month limitation period for any defamation claim based on the 6 September 2016 publications (of which the publication now sued upon against Ms Hodges is but one) is agreed by the parties to have expired on 6 September 2017. The three-year period for an extension outside those twelve months expired on 6 September 2019.
The publications sued upon in relation to the injurious falsehood claim were not provided to the plaintiffs' solicitors until 31 July 2017 in the course of the investigation of the complaint. The statement made by Ms Hodges describes how she received and forwarded on to her superior the statements containing these complaints, as well as summarising additional matters set out in the covering letter for these documents. However, Ms Hodges' covering letter to her superior enclosing those statements (the subject of the claim for defamation, hereafter referred to as the "briefing note", a copy of which is set out as an annexure to this judgment) was not provided to the plaintiffs' solicitors, despite their written requests for this document on 21 and 24 August 2017.
On 8 November 2017, the investigator of the complaints (Mr Plumridge) advised the plaintiffs' solicitor (Mr A R Conolly) that he had made findings of "insufficient evidence" in relation to the complaints made against his clients, who are the plaintiffs in these proceedings. On 21 November 2017 and subsequent occasions, Mr Conolly wrote seeking a copy of Mr Plumridge's report, but this was not provided.
On 20 April 2018, Mr Conolly sought a range of documents, including the report, which would have included Ms Hodges' previously unserved briefing note (although Mr Rasmussen told the court this had not been sought: T 13), under the Government Information (Public Access) Act 2009 (NSW) ("GIPA"). That application was granted in part as to two documents, but access to four documents (including the report) was refused, on the basis that "volunteer members play an integral role in … the NSWRFS" and the ability of that organisation to conduct grievance and complaint investigation would be "compromised" if full and frank disclosure by members could not be obtained (Exhibit 1, p. 79). No appeal from this ruling was lodged.
On 8 June 2018 Mr Conolly's Associate, Mr Mathews, who has carriage of these proceedings wrote to the solicitors for the Rural Fire Service, Clayton Utz, as follows: "Dear Ms Talbert GRAEME JAY & JOHN PETERS 1. We refer to the disciplinary investigation into NSW Rural Fire Service (the RFS) members Mr Graeme Jay and John Peters. 2. We continue to act for both Mr Jay and Mr Peters. 3. Both Mr Jay and Mr Peters are considering taking legal action against the RFS. 4. We refer to the report and attachments delivered to you by link in an email from Mr Jason Plumridge on 25 October 2017. 5. We request a copy of both those reports and all annexures (the Reports). 6. We have previously requested the Reports from you on three occasions. 7. We received no response. 8. We enclose copies of our letters to you, dated: (a) 21 November 2017, (b) 5 December 2017, and (c) 14 February 2018. 9. Employers are expected to practice [sic] procedural fairness. As such it is ordinary practice and one recognised by the Courts that reports commissioned by employers concerning misconduct by employees should be provided to the employees. See Langdale v KDR Victoria Pty Ltd [2015] FWC 4613. 10. The RFS has additional obligations pursuant to the Rural Fires Act 1997 (Rural Fires Act) and the Service Standards that are delegated under the auspices of that Act. 11. Your Service Standard SS1.1.2 grants your members the right to appeal a determination. 12. We request that you provide Mr Jay and Mr Peters with a copy of the Reports and all evidence considered by the RFS in making a determination into the allegations against these members. 13. We ask that this material be provided by 5:00pm Friday 15 June 2018. 14. Otherwise we are instructed to make an application under the Uniform Civil Procedure Rules 2005 (NSW) (UCPRs) r 5.3(1) for preliminary discovery against the RFS. 15. This application will be to assist us before action to determine our clients' rights at law. 16. If it becomes necessary to make the application we will ask for indemnity costs and this letter will be tendered. 17. Please contact the writer if you would like to discuss anything raised in this letter further. 18. We look forward to your urgent response. Yours faithfully. A R CONOLLY & COMPANY"
The plaintiffs never brought any such application. After a failed mediation, a number of letters of demand were sent later that year (although not to Ms Hodges). No further steps were taken prior to 6 March 2019, when the plaintiffs' proceedings against the first three defendants were commenced.
The plaintiffs did not bring any application for preliminary discovery at the same time as seeking directions from the court concerning their claim, although such a step was open to them (Szymczak v Balijepalli [2019] FCA 203 (order made); Szymczak v Balijepalli (No 2) [2019] FCA 1093 (order enforced, including the issuing of an arrest warrant: at [32(2)])).
After the defendants had been served and had obtained representation, the plaintiffs' solicitors issued a subpoena to the New South Wales Rural Fire Service ("NSW RFS"). This subpoena, issued on 11 June 2019, sought 20 subsets of documents, including the matter complained of, all of which were produced in July 2019. The plaintiffs' solicitors complained that the documents were out of order. The documents were put into order by Mr Cantrell (a solicitor in the employ of the Crown Solicitor's Office) and provided on 5 August 2019.
Some time between 5 and 30 August 2019, the plaintiffs and their solicitor read the covering letter prepared by Ms Hodges to accompany the statements which is referred to (but not annexed to) her own statement, a copy of which the plaintiffs had had in their possession since 31 July 2017. Late on Friday 30 August 2019, an amended statement of claim adding a defamation claim against Ms Hodges based on the briefing note and its attachments was filed without leave and served by email on Mr Cantrill, although the Crown Solicitor's Office was not acting for her at the time.
The filing of this document was rejected by the District Court on 2 September 2019, four days before the limitation period expired. However, the solicitors for the plaintiffs failed to appreciate the contents of the registry's letter to this effect until after the limitation period had expired. When they did so, they amended the notice of motion to seek leave to cure this irregularity under ss 16 and 63 Civil Procedure Act 2005 (NSW).

The orders sought by the plaintiff

The orders the plaintiffs seek are: 1. An order granting leave to the plaintiffs to amend the motion filed 6 September 2019 to seek the relief set out below: 1. An order pursuant to s 63(2) or s 16 of the Civil Procedure Act 2005 (NSW) that the Amended Statement of Claim lodged for filing on 30 August 2019 be treated as having been duly filed by the District Court Registry at Sydney on that date (30 August 2019). 2. An order pursuant to s 56A(2) of the Limitation Act 1969 (NSW) extending the limitation period provided by s 14B of the Defamation Act 2005 (NSW) so as to commence a claim in defamation against Ms Karen Hodges as set out in the Amended Statement of Claim filed in proceedings No. 2019/72815 on 30 August 2019. 3. An order that the plaintiffs in proceedings No. 2019/72815 be granted leave to amend their claim as set out in the Amended Statement of Claim filed on 30 August 2019. 1. An order pursuant to s 63(2) or s 16 of the Civil Procedure Act that the Amended Statement of Claim lodged for filing on 30 August 2019 be treated as having been duly filed by the District Court Registry at Sydney on that date (30 August 2019). 2. An order pursuant to s 56A(2) of the Limitation Act extending the limitation period provided by s 14B of the Defamation Act so as to commence a claim in defamation against Ms Karen Hodges as set out in the Amended Statement of Claim filed in proceedings No. 2019/72815 on 30 August 2019. 3. An order that the plaintiffs in proceedings No. 2019/72815 be granted leave to amend their claim as set out in the Amended Statement of Claim filed on 30 August 2019.

The issues for determination

The issues for determination are agreed by the parties to be as follows: 1. Whether an order should be made concerning the irregularity created by rejection of the amended pleading, under s 63(2) or s 16 of the Civil Procedure Act 2005 (NSW). 2. Whether an extension under s 56A Limitation Act 1969 should be granted.
No doubt because the factual material covers a long period and is complex, the parties have either abandoned or not put some arguments that they might otherwise have made. I have checked the issues for argument and concessions made during the hearing against the transcript, and these are as follows: 1. Mr Richardson frankly conceded that Johnston v Vintage Developments Pty Ltd [2006] FCAFC 171 undercut all of his arguments on ss 16 and 63, and that the best he could do (T 2) was to ask me not to follow the decision as it is "wrong" (although without specifying the basis upon which it is wrong).In the absence of submissions, I do not propose to consider this issue further. Mr Richardson did not point to any basis upon which the decision should be distinguished; nor did he address me on the arguments set out in Van Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953, although provided with a copy. In view of Mr Richardson's concessions, I do not propose to set out what arguments could have been raised and instead accept the submissions made by Mr Rasmussen that the s 63 order sought should be granted. 2. As noted in the preceding paragraph, both parties' legal representatives have taken the view that the plaintiffs' rights to sue any of the defendants expired one year after the date of preparation of those statements, namely on 5 September 2016 (T 5), although it is clear from the factual material that the briefing note could well have been published on later occasions. I also note that a contrary view was taken of the dating of workplace complaint records by the Federal Court, both at first instance and on appeal, in Bahonko v Sterjov & Ors [2007] FCA 1244 and Bahonko v Sterjov [2008] FCAFC 30. In those proceedings, the date for publication was not the date the document containing the complaints about the plaintiff's work performance was made (November 2004), but the later date of provision to the court after Ms Bahonko called for production during the course of the workplace proceedings, namely in February 2005. There is no single publication rule and it may be that the cause of action for defamation is not an accrued cause of action dated 6 September 2016, but also other publications at later dates when it was published to others, such as the investigator and/or other NSW RFS personnel (see, for example, Richards v Naum [1964] 1 QB 620), or even to the plaintiffs' solicitor, as appears to have been acknowledged in the pleading of the claim (see in particular paragraph 9 of the proposed pleading, with its references to "October 2016" and "25 October 2017" as well as to "republication"). However, as this date is the subject of agreement between the parties (T 5), I have accepted it. 3. Mr Richardson acknowledged (T 51) that his principal argument was that the plaintiffs' delay after the expiry of the limitation period fell squarely within the ratio decidendi of Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304. He formally submitted that the plaintiffs had notice of the existence of the matter complained of approximately five weeks prior to the expiry of the twelve-month limitation period, but his main submission focused on the extension after the limitation period had expired. 4. It appears that the plaintiffs' reason for seeking to add the defamation claim against Ms Hodges to the existing proceedings was to avoid the raising of Hearne v Street (2008) 235 CLR 125 issues, namely use of a document obtained under subpoena to commence other proceedings (T 8). Given the findings I propose to make in relation to s 63, there is no need for me to concern myself with this issue. There are in fact other potential arguments arising from the circumstances in which this subpoena was issued and its very broad content (see El-Mouelhy v QSociety of Australia Inc (No 4) [2015] NSWSC 1816 and Buswell v Carles [2012] WASC 509), but Mr Richardson frankly acknowledged that he was not taking any of them (T 8). 5. The claim against Ms Hodges is for her briefing note only and not for her statement, although it repeats the same material and is capable of giving rise to at least some of the same imputations. Mr Richardson suggested that this could be because of a belief that absolute privilege attaches to a statement for the purposes of defamation but not injurious falsehood (Richards v Naum at 625; Murtaough v Bentham [2004] NSWSC 753 but cf Gray v Avadis [2003] EWHC 130 (QB)). However, workplace complaints statements are not protected, unlike court or witness statements, and a defence of absolute privilege does not apply to any of these documents (Zaghloul v Woodside Energy Limited (No 8) [2019] FCA 971).
By reason of the uncertainties as to the parameters of the issues in question, the parties were supplied with the transcript to assist in the making of any further submissions, but they have not done so.
As the above list demonstrates, leave to rely on the amended pleading has effectively been conceded and the principal issue between the parties is whether an extension of time should be granted as at the limitation period's end, as well as in the two year period thereafter, in accordance with the principles set out in Barrett v TCN Channel Nine Pty Ltd.
I have set this out in detail as, where the position of parties in submissions and argument change in this fashion, it is important for the court to be able to determine the issues that have in fact been argued. Caution is necessary in order to ensure that complaint is not later made that the judge hearing the application has failed to deal with a particular application or argument. This is particularly desirable in cases such as the present where it appears that there is considerable animus between the parties.

Evidence

The plaintiffs rely upon the following affidavits: 1. Affidavit of Peter Mathews, solicitor, filed on 6 September 2019; 2. Affidavit of Peter Mathews, solicitor, filed on 18 October 2019.
Ms Hodges relies upon the affidavit of Mr Cantrill, solicitor, filed on 10 October 2019.

The defamation claim pleaded against the proposed fourth defendant

The plaintiffs' causes of action pleaded against the first three defendants are claims for injurious falsehood, whereas the claim pleaded against the proposed fourth defendant is one of defamation, in relation to her publication of 5 September 2016. However, apart from Ms Hodges' briefing note, there is a complete overlap (in terms of content) between the claims for injurious falsehood and the claim for defamation, in that the same statements are annexed.
The claim for defamation is pleaded as follows (at paragraphs 9 to 10 of the proposed Amended Statement of Claim): "9. On and between 5 September 2016 and 19 October 2016 the fourth defendant (Ms Karen Hodges) wrote and published defamatory matter of and concerning the plaintiffs. Particulars of publication The matter was a briefing note with annexures which matter is annexed to this claim and marked 'B'; The matter was written by the fourth defendant and sent to Ben Watson on or about 5 September 2016; The matter was read and understood by Ben Watson sometime between 5 September 2016 and 19 October 2016, the precise date of publication is not currently known by the plaintiffs. The matter was republished to Mr Jason Plumridge who read and understood it on a date not yet known to the plaintiffs (but some time after 19 October 2016) and which he reproduced in his investigation report dated 25 October 2017 which report cleared the plaintiffs of any and all allegations made against them by the defendants. The plaintiffs rely upon the grapevine effect. These are the best particulars of publication that the plaintiffs can supply until interrogatories have been administered and answered by the fourth defendant and discovery given by her. 10. In its natural and ordinary meaning the defamatory matter referred to in the preceding paragraph conveyed the following imputations which are defamatory of the plaintiffs: (i) that the first plaintiff, Graeme Jay, has been bullying and harassing volunteers and staff within the Hawkesbury RFS; (4, 5, 18) (ii) that the first plaintiff, Graeme Jay, has breached Service Standard 1.1.17 Code of Conduct and Ethics; (8) (iii) that the first plaintiff, Graeme Jay, is a bully; (the entire matter complained of but particularly paragraphs 4, 5, 13,18, 22, 23, 27, 59, 69, 78, 92, 129, 139, 181, 204) (iv) that the first plaintiff, Graeme Jay, continues to be a bully (the entire matter complained of but particularly paragraphs 4, 5, 13, 18, 22, 23, 27, 82, 123, 181, 20); (v) that the first plaintiff, Graeme Jay, bullied and intimidated members of the Rural Fire Service who attended a meeting on 20 July 2016 by raising his voice in an aggressive manner even after he was told not too (the entire matter complained of but particularly paragraphs 18, 22, 23, 60, 61, 63, 69, 78, 92, 99, 132); (vi) that the first plaintiff, Graeme Jay, was deliberately disruptive of a meeting of the Rural Fire Service on 20 July 2016 because he ignored demands to speak in a calm manner (the entire matter complained of but particularly paragraphs 100, 128, 129); (vii) that the first plaintiff, Graeme Jay, lied to the persons present at the South Sector meeting on 20 July 2016 when he told them that he had no idea of the content of the letter from John Peters because he was in fact the one who had given the letter to Charles Eather so that it would be tabled at the meeting (the entire matter complained of but particularly paragraphs 43-52, 55, 77, 120, 121, 208); (viii) that the first plaintiff, Graeme Jay, is dishonest (the entire matter complained of but particularly paragraphs 43-52, 55-59, 120, 208); (ix) that the first plaintiff, Graeme Jay, by his conduct at the meeting on 20 July 2016 has breached Rural Fire Service Standard 1.1.42, sections 3.10-3.15 and the Code of Conduct section 4.6 (the entire matter complained of but particularly paragraphs 43-52, 55, 77, 120, 121, 208); (x) that the first plaintiff, Graeme Jay, insisted that a letter that he knew to be libellous of Andrew Rutter and Bruce Earle be read at the meeting of the Rural Fire Service on 20 July 2016 (the entire matter complained of but particularly paragraphs 26, 38, 46-49, 55, 77, 208); (xi) that the first plaintiff, Graeme Jay, should be disciplined because of his misconduct at the meeting of the Rural Fire Service on 20 July 2016 (the entire matter complained of); (xii) That the first plaintiff, Graeme Jay, exhibited spiteful, menacing and aggressive language at the South Sector meeting on 20 July 2016 (the entire matter complained of but particularly paragraphs 98, 99, 100, 301); (xiii) that the second plaintiff, John Peters, has been bullying and harassing volunteers and staff within the Hawkesbury RFS; (4, 5) (xiv) that the second plaintiff, John Peters, has breached Service Standard 1.1.17 Code of Conduct and Ethics; (8) (xv) that the second plaintiff, John Peters, is a bully (the entire matter complained of but particularly paragraphs 4, 5, 13, 32); (xvi) that the second plaintiff, John Peters, continues to be a bully (the entire matter complained of but particularly paragraphs 13, 32); (xvii) that the second plaintiff, John Peters, libelled Andrew Rutter and Bruce Earle in a narrative he provided in support of two motions at the meeting of the Rural Fire Service on 20 July 2016 the entire matter complained of but particularly paragraphs 33-41, 47, 55-58, 301); (xviii) that the second plaintiff, John Peters, falsely accused Andrew Rutter and Bruce Earle of being unfit to represent South Sector as Senior Management Team Representatives (the entire matter complained of but particularly paragraphs 33-41, 47, 55-58, 301); (xix) that the second plaintiff, John Peters has breached Rural Fire Service Standards 1.1.42, sections 3.13(e) and section 3.13(l) and the Code of Conduct section 4.6 (the entire matter complained of but particularly paragraphs 33-41); (xx) that the second plaintiff, John Peters, should be disciplined because of his misconduct (the entire matter complained of)."
The text of the briefing note is set out as an annexure to this judgment, but the many pages containing the witness statements (which, it will be noted from the pleading set out above, give rise to many of the imputations) have not been included.

The relevant statutory provisions

Section 56A Limitation Act 1969 (NSW) provides: "56A Extension of limitation period by court (1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action. (2) A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 14B to a period of up to 3 years running from the date of the publication. (3) A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2)."
The limitation period is one year from the date of publication of the matter complained of. Section 14B of the Limitation Act 1969 (NSW) provides: "14B Defamation An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of."

The relevant principles of law

The burden to be discharged by the plaintiffs is to establish that it was not reasonable to commence proceedings within the first year after publication (Houda v State of New South Wales [2012] NSWSC 1036 at [14]). The test is an objective one: Noonan v MacLennan (2010) 2 Qd R 537 at [19]-[21]; Lakaev v Denny [2010] NSWSC 1480; Casley v Australian Broadcasting Corporation [2013] VSCA 182 at [72]-[74].
The plaintiffs' evidence must deal with the whole of this specific period of time. In Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [51], Fryberg J explained this obligation as follows: "[51] Section 32A(2) of the Limitation of Actions Act 1974 (Qld) ("LAA") requires the court to be satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action "within 1 year". There is an inherent ambiguity in that expression. Semantically, it might mean at any one time during the year; or it might mean at all times during the year. The ambiguity is semantic only. An interpretation which permitted satisfaction of the subsection by demonstrating that there was a least one time during the year when it was not reasonable to have commenced an action would deprive the section of any scope for meaningful operation. It must require the court to be satisfied that at no time during the year following publication was it reasonable for the applicant to have commenced an action."
While the plaintiff does not have to deal with every day or week, the evidence must deal at least in broad terms to demonstrate that there is no significant period during which it would have been reasonable to have commenced an action. Fryberg J went on to note: [52] In Noonan v McLennan, Chesterman JA approved a dictum of Noud DCJ at first instance to the effect that an applicant does not have to account for every day or week in the limitation year. With respect, I agree. However the applicant's evidence must at least in broad terms deal with the whole of the year and must demonstrate why there was no significant period in which it would have been reasonable to have commenced an action. A would-be litigant who could reasonably commence an action postpones doing so at his or her own peril. If supervening events make it difficult or unreasonable to do so at a later time, they will not be sufficient to satisfy the requirements of the subsection."
A choice to pursue another form of remedy does not make it unreasonable for the plaintiff to have commenced legal proceedings: Noonan v MacLennan at [59]. However, where criminal proceedings of the kind in which Mr Houda found himself (Houda v State of New South Wales) are also on foot, the court may have regard to the missing element created by such an event as being relevant in terms of the test. In State of Queensland v O'Keefe [2016] QCA 135 at [30] - [33], where Mullins J (with whom McMurdo JA and Douglas J agreed), making a similar order in circumstances where there were additional factors, referred to McCallum J's warning that not every case would give rise to such a result. Mr Rasmussen's reliance on Houda v State of New South Wales needs to be seen in light of these observations from an intermediate appellate court.
If the plaintiffs do satisfy the court that it was not reasonable to commence within one year, then time must be extended (Rayney v The State of Western Australia (No 3) [2010] WASC 83 at [50]). However, the length of any extension is a matter for the discretion of the court, confined by the scope and purposes of the Limitation Act (Barrett v TCN Channel Nine Pty Ltd at [75], [82], [106] and [119]; Casley v Australian Broadcasting Corporation at [72]-[74]). Matters relevant to the exercise of the discretion include the explanation, or lack therefore, for the delay.
The relevant principles are as follows: 1. First, as to the policy behind the legislation, there is a deliberately short limitation period and difficult test are a warning to parties to act promptly: Wookey v Quigley (No 2) [2010] WASC 209 at [82] per Kenneth Martin J; Clark v Ibrahim [2014] VSC 30 at 74 per Zammit AsJ. This is because of the public interest in speedy resolution of defamation actions: Noonan v MacLennan at [67] per Chesterman J. 2. Second, where a limitation period expiry looms, swift action is called for: Wookey v Quigley (No 2) at [52] - [55] as the time for pre-action steps such as preliminary discovery and/or the issuing of subpoenae is accordingly reduced: Pingel v Toowoomba Newspapers Pty Ltd at [37] per Fraser JA. 3. Third, the courts have warned that there are a number of procedures available to a party, such as pre-action discovery (Slaveska v State of Victoria and Others [2015] VSCA 140 at [119]-[126] per Warren CJ, Tate JA and Ginnane AJA; Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498 at [22] per Mukhtar AsJ) and/or interrogatories as to the identification of a publisher (Kaiser v George Laurens (NSW( Pty Ltd [1982] 1 NSWLR 294). While it may have been the case in the past that these interrogatories were considered the best way forward, case management issues are now cited as being a reason for preferring non-party or preliminary discovery, as opposed to requiring a plaintiff to construct the claim and then seek to interrogate: AB - CD (No 2) [2019] WASC 301 at [24]. Nevertheless, there is at least one publication to go on with in this case (namely the statement made by Ms Hodges, the contents of which are very similar to the matter complained of, and which the plaintiffs had had since 31 July 2017), the plaintiffs could have commenced proceedings in relation to her statement and sought production of the matter complained of at an early stage of the proceedings: Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611.

What information did the plaintiffs have about the matter complained of?

Mr Rasmussen's principal point is that, until his clients had the matter complained of in their possession, they could not commence proceedings. The first issue is to determine the relevant facts.
What information, if any, did the plaintiffs have about the briefing note's contents, when did they obtain it, and was it sufficient to put them on notice as to the likelihood of the document being actionable as a defamation?
The affidavit of Mr Bruce Cantrill (sworn on 10 October 2019) sets out that, on or about 25 August 2016, the defendants sent a letter to Ms Hodges setting out allegations of misconduct and in relation to the first and second plaintiffs and annexing a series of written complaints from 15 members of the NSW RFS. Ms Hodges, the fire control officer for the Hawkesbury Rural Fire District, Region East and NSW RFS, holds the rank of Superintendent and is responsible for managing the volunteer members of 23 brigades, one of which is the Glossodia Rural Fire Brigade, which is the subject of these complaints.
The defendants' letter and attached annexures already form part of the statement of claim in that they are the publications sued upon by the plaintiffs in relation to the action against the first to third defendants for injurious falsehood. The briefing note prepared by Ms Hodges on or around 5 September 2016, which attached these statements and is the proposed matter complained of, is addressed to Mr Watson, the Regional Manager, Region East of NSW RFS. It is not in dispute that the attachments are effectively identical.
Mr Watson read the document and on 13 December 2016 notified Ms Hodges that a disciplinary investigation was being commenced into each of the plaintiffs, to be conducted in accordance with the NSW RFS Service Standard 1.1.2. A Mr Jason Plumridge of Vestinex Pty Ltd had been appointed to undertake the investigation. Also on 13 December 2016, the first and second plaintiffs were notified by letter of the investigation and on 20 February 2017 they were sent separate letters outlining the allegations in relation to each of them seeking a formal response.
It was at this stage that the plaintiffs each retained the law firm A R Conolly & Company and all subsequent correspondence relating to each plaintiff was directed to that firm. The documentation was provided to A R Conolly & Company on or about 24 February 2017 in the form of a USB drive and was also made available by way of a Google Drive link. The synopsis of evidence provided with this evidence was in anonymised form.
The investigation was put on hold for unknown reasons between February and June 2017 and, on 11 June 2017, Mr Conolly wrote to Mr Plumridge querying why the witnesses had been anonymised. As a result, on 31 July 2017, Mr Plumridge sent letters to Mr Conolly in relation to each of the first and second plaintiffs enclosing the original complaint information provided to Mr Plumridge by NSW RFS and all associated statements including names. Each letter identified "Karen Hodges" was "Witness 11". This means that as at 31 July 2017 or shortly thereafter, the plaintiffs knew what Ms Hodges said in her statement, which refers to, but does not attach, the matter complained of.
The relevant portion of Ms Hodges' statement is as follows: "5. I understand that if the Department Head or delegate makes a finding of misconduct against the involved officer / volunteer member, or another employee/volunteer member, they may receive a copy of the investigation report which may include a copy of all the attachments to the report including this statement. 6. I am currently employed as the Fire Control Officer for the Hawkesbury Rural Fire District, Region East and NSW RFS. I hold the current rank of Superintendent. I have held this position for approximately 17 years. My role and responsibilities in this position include: a. Management of 8 FTE staff attached to the Hawkesbury Rural Fire District and approximately 1900 volunteer members across 23 Brigades; b. have the supervision and direction of all rural fire brigades and groups of rural fire brigades in the rural fire district; 7. In this position, I confirm that I am responsible for the overall management of the Glossodia Rural Fire Brigade. Mr Graeme Jay ("Mr Jay") is the current Captain of the Glossodia Brigade and Mr John Peters ("Mr Peters") is the current President of the Glossodia Brigade. 8. Over several years, I am aware that there have been persistent issues and concerns in relation to what I would describe as overly aggressive and intimidatory behaviours displayed by Mr Jay and Mr Peters in dealing with volunteer members of the service. 9. The most recent incident which was reported to me relates to the behaviour of Mr Jay at a sector meeting held on 20th July 2016 at which it is alleged Mr Jay was overly aggressive in his behaviour towards various volunteer members. Whilst I was not present at that meeting I have received several reports and allegations in relation to the behaviour of Mr Jay at that meeting. As a result of those reports and accompanying documentation prepared by those volunteers on the 5lh September 2016, I prepared and submitted a briefing note to Mr Benjamin Watson, Regional Manager East containing those allegations as they were provided to me. I NOW PRODUCE A COPY OF THAT BRIEFING NOTE DATED 5™ SEPTEMBER 2016 AS ATTACHMENT A. 10. As part of the history of these behaviours (as referred to in the above Briefing Note) on the 9th February 2016 the Regional Manager, Mr Watson and Manager Counselling and Support Unit and Critical incident Team, Mr Paul Scott convened a workshop with local Senior Management and Mr Jay, Mr Peters and Mr Paul Crick (Senior Deputy Captain, Glossodia Brigade). This workshop was held to discuss many issues including the ongoing bullying and harassment of volunteers within the Hawkesbury by Mr Jay and Mr Peters. The outcome of that workshop was that all parties resolved to "draw a line in the sand" and to move forward harmoniously for the benefit of the District. However, despite the agreements made at that workshop, the events of 20th July 2016 have resulted in fifteen (15) RFS volunteers making formal allegations in relation to Mr Jay and Mr Peters. The three Group Officers, who have administrative charge of the seven brigades together with Communications and Catering Groups, have written to me with a detailed compilation of allegations against Mr Jay and Mr Peters. Based on the information contained in these documents it is my view that Service Standard 1.1.17 Code of Conduct and Ethics has been breached by both Mr Jay and Mr Peters. I NOW PRODUCE A COPY OF THOSE ALLEGATIONS WITH VARIOUS DATES ON WHICH THEY WERE SUBMITTED BY THOSE STAFF/VOLUNTEERS AS ATTACHMENT B. I ALSO PRODUCE A COPY OF A LETTER DATED 25™ AUGUST 2016 FROM MESSRS PETRIKAS, RYAN AND WEDGE THE ELECTED GROUP OFFICERS OF HAWKESBURY DISTRICT WHICH WAS RECEIVED IN CONSIGNMENT WITH THE ABOVE ALLEGATIONS AS ATTACHMENT C. 11. On 31st August 2016, I received correspondence from one of the South Sector Group Officers Mr Ian Wedge ("Mr Wedge") in relation to allegations of bullying and harassing behaviour of Mr Jay and Mr Peters towards a member of the Glossodia Brigade Mr Daniel Naethuys ("Mr Naethuys"). In relation to these matters I received the following information which is relayed in that briefing note. The allegations raised in this briefing note include the following: • Bullying and threatening behaviour by Mr Peters and Mr Jay towards Mr Naethuys; • Mr Jay supplying false information regarding an operational incident; • Mr Peters disclosing information breaching confidentiality to an ongoing investigation to third parties; • Mr Jay failing to comply with directives in relation to video surveillance within the brigade station; • Unauthorised use of surveillance within the brigade station; and • Plot to conduct a deliberate breach of the Code of Conduct and Ethics Service Standard. 12. The information provided in the above briefing note relates to the following information received by Mr Wedge from Mr Naethuys and relayed to me as District Manager. Mr Naethuys was formerly in a relationship with Mr Jay's seventeen (17) year old daughter, Ms Tegan Jay ("Ms Jay") who is also a member of the Glossodia brigade. After this relationship ceased amicably and by mutual agreement, Mr Naethuys responded to an incident call on 6 June 2016. Also responding to the incident was Mr Jay and his son Mr Andrew Jay ("Mr Jay") (also a member of Glossodia Brigade) and Ms Jay. Mr Naethuys alleges that Mr Graeme Jay, as Captain of the brigade, would not allow him on the truck because of his relationship with Ms Jay. Mr Naethuys alleges that false information was given to Fire Control by Mr Graeme Jay in relation to who was on the truck responding as without Mr Naethuys on board, the remaining crew would not have been sufficient to respond to the incident. Investigation confirms this allegation. 13. Mr Naethuys then received text messages and a telephone call from Mr Peters indicating that Mr Naethuys should leave the brigade immediately or he would report the relationship to the NSW Rural Fire Service Professional Standards Unit (PSU). Mr Naethuys did not resign and a complaint was made to the NSW RFS PSU and Mr Naethuys was stood down by the NSW RFS PSU. Whilst Mr Naethuys was stood down and the investigation was underway, Mr Naethuys alleges that Mr Peters contacted his employer in relation to the matter and also contacted Mr Naethuys mother and step father in relation to this matter. On 29 July 2016, Mr Naethuys was reinstated following the completion of the investigation by the PSU. 14. I am also aware that Mr Naethuys has also lodged his objection to the presence of cameras around the Glossodia Station where he and others often change their clothes when attending fire calls. He alleges that he overheard a member ask Mr Graeme Jay whether the cameras worked, He allegedly replied, "not officially, but unofficially they do". The District Office was made aware in 2013 of unauthorised installation of video surveillance equipment in the Glossodia Rural Fire Station. Upon investigation, it was determined that the equipment was in use and video surveillance was being undertaken. On s\x separate occasions Mr Jay and Mr Peters have been directed to disable, turn off, not use the equipment until it was authorised. 15. Mr Naethuys further states that he has not resigned from the Brigade, yet the Brigade Executive Minutes dated 17th August 2016, indicate that the Vice President (Mr Naethuys) has left the brigade. Mr Naethuys has not resigned from the Brigade at this time and has not vacated the position of Vice President. Mr Naethuys has indicated that he wishes to return to Glossodia Brigade but feels at this time, that he cannot as he feels bullied by the behaviours of Mr Jay and Mr Peters. I NOW PRODUCE A COPY OF THE BRIEFING NOTE PREPARED BY ME DATED 5TH SEPTEMBER 2016 TO THE REGION MANAGER MR WATSON BASED ON INFORMATION RECEIVED AS ATTACHMENT D. I ALSO PRODUCE A COPY OF THE FIRE INCIDENT REPORT IN RELATION TO THE INCIDENT OF 6TH JUNE 2016 RECORDING MR NAETHUYS ATTENDANCE AT THE INCIDENT AS ATTACHMENT E. I ALSO PRODUCE A COPY OF THE PSU INVESTIGATION LETTER TO MR NAETHUYS DATED 29 JULY 2016 FROM MS COLBEY DIRECTOR PSU AS ATTACHMENT F. 16. On 20th December 2016, I met with Mr Plumridge for an interview during which time I provided the information contained in this statement. This information has been utilised by Mr Plumridge to prepare this statement on my behalf. I confirm that I have reviewed the information contained in this statement and that it is true and correct to the best of my knowledge and belief and accurately reflects the contents of that interview. 17. I understand that I have an obligation to keep the contents of this statement and the investigation as a whole confidential and that I am not to discuss the contents of this statement with any other person other than a designated representative who is representing my interests in this matter." (Exhibit 1, pp. 51-55; emphasis added to part of paragraph 10)
The two direct references to the proposed matter complained of can readily be seen. While the actual briefing note was not attached to Ms Hodges' statement, its contents are hardly a secret. Apart from her briefing note, the plaintiffs have had all the attachments to that briefing note and, as their pleading concedes, many of the imputations arise from these.
These features appear to have attracted the attention of the plaintiffs' solicitors. On 21 August 2017, Mr Conolly wrote to Mr Plumridge about a number of issues. Paragraph 23 of that letter stated that "[t]he statement of Karen Hodges refers to an attachment A, this briefing note has not been provided to us" and requesting a copy (see annexure E to the affidavit of Mr Cantrill). A reminder letter was sent three days later, on 24 August 2017. However, a copy of the briefing note was not provided to the plaintiffs by Mr Plumridge.
According to Mr Cantrill's affidavit, no further requests were made for this document prior to Mr Plumridge submitting his investigation reports to the Acting Regional Services Co-Ordinator at the NSW RFS on 25 October 2017. The briefing note which is the subject of the proposed amendment to join Ms Hodges constituted attachment 3 to those reports.
On 7 November 2017, Mr Conolly wrote to Mr Plumridge asking the investigation be brought to an end and that apologies be made to each of the plaintiffs. Mr Plumridge replied the following day advising that the reports contained findings to the effect of there being insufficient evidence and stating that he could not supply the reports directly as these had been prepared for the NSW RFS. Mr Conolly then wrote to Ms Talbert at the NSW RFS requesting copies of the reports. These were not provided.
The explanation is, as the opening paragraph of Ms Hodges' statement makes clear, that the reports are provided to the parties under investigation only if the findings go against them. Mr Conolly wrote again on 14 February 2018 seeking a copy of the final investigator's report and, when that was not provided, prepared a request under GIPA seeking access to certain categories of documents relating to Mr Plumridge's investigation. This included a copy of the report and all annexures which would have included the briefing note prepared by Ms Hodges, which is the subject of the proposed amendment.
On 12 September 2018, Mr Conolly sent a series of letters which appear to be concerns notices, in that these refer to statements made which were "untrue and highly defamatory" (paragraph 2 of the letter). The letter sought an apology in terms to be agreed, an acknowledgement that the statements were false and an undertaking to contribute to the costs incurred in relation to the false statements. The cause of action is not otherwise identified in any of these letters, which were sent to 10 recipients (of whom Karen Hodges was not one). The reply dated 28 September 2018 from Clayton Utz noted the expiry of the limitation period for defamation proceedings. This correspondence suggests that the plaintiffs and their legal advisers were considering actions for defamation during this part of 2018.
It is not in dispute that no application for preliminary discovery was ever made against the NSW RFS or any employee or officer of that organisation in advance of the proceedings being commenced on 6 March 2019. Nor was there any further correspondence with Messrs Clayton Utz, including a letter sent on 2 October 2018 inquiring how Mr Conolly had obtained the home addresses for the recipients of certain of those letters.
Did the plaintiffs know enough about the matter complained of to bring an application for preliminary discovery? The contents of the schedule to the subpoena to the NSW RFS filed on 11 June 2019 indicate that they did. Out of the 20 categories of documents, Karen Hodges' name appears in items 4, 13, 14, 15, 16, 17, 19 and 20. The proposed matter complained of is item 17. The full list of documents sought under subpoena were as follows: "In this schedule a record includes any document, email, letter, file note, recording, diary or calendar entry, telephone log or transcript. The documents or things you must produce are as follows: 1. A copy of this subpoena. 2. Letter of instruction sent to Mr Jason Plumridge, investigator appointed by the RFS, dated on or about 13 December 2016 in relation to the investigation of Graeme Jay and John Peters. 3. Any further letter of instruction sent to Mr Jason Plumridge after 13 December 2016. 4. All records of correspondence between Karen Hodges and Jason Plumridge between 1 December 2016 and 1 June 2018. 5. All records of correspondence between Rebel Talbert and Jason Plumridge between 1 December 2016 and 1 June 2018. 6. All records of correspondence between Jason Heffernan and Jason Plumridge between 1 December 2016 and 1 June 2018. 7. Any email sent to the Director Regional Services on 25 October 2017 at about 1:54pm and all documents reference or made downloaded from a hyperlink provided in any email to Director Regional Services sent 25 October 2017 at about 1:54pm. 8. Investigation report into Captain (Graeme Jay), Glossodia Rural Fire Brigade. 9. Any draft Investigation report into Captain (Graeme Jay), Glossodia Rural Fire Brigade received prior to 25 October 2017. 10. Investigation report into President (John Peters), Glossodia Rural Fire Brigade. 11. Any draft Investigation report into President (John Peters), Glossodia Rural Fire Brigade received prior to 25 October 2017. 12. Any record that provided, forwarded or brought the investigation report into either Graeme Jay or John Peters (Reports) or substance of the Reports to the attention of anyone else sent from Rebel Talbert, Jason Plumridge or Kate Wharton, or anyone under their direction. 13. Any further record received by Karen Hodges or Rebel Talbert concerning the outcome of the Reports including any complaints about the findings or outcome of the Reports for the period 20 July 2016 to 1 June 2018. 14. All statements, reports or records received by Karen Hodges, Rebel Talbert or Kate Wharton concerning the South Sector meeting of the NSW Rural Fire Service on 20 July 2016 for the period 20 July 2016 to 1 June 2018. 15. All statements, reports or records sent by Karen Hodges, Rebel Talbert or Kate Wharton concerning the South Sector meeting of the NSW Rural Fire Service on 20 July 2016 for the period 20 July 2016 to 1 June 2018. 16. Any record between 20 July 2016 and 25 August 2016 of communication from Chris Petrikas, David Ryan and Ian Wedge sent or copied to Karen Hodges, Rebel Talbert or Kate Wharton. 17. The briefing note prepared by Karen Hodges and submitted to Mr Benjamin Watson on or around 5 September 2016. 18. All documents recording the number of persons who read the documents comprising Annexure 'A' to the statement of claim (attached* hereto). 19. A clear legible copy of the letter sent to Superintendent Karen Hodges by Chris Petrikas, David Ryan and Ian Wedge on or about 26 August 2016 including each item that was attached to it. 20. All emails and letters recording the dissemination of the letter (sent to Superintendent Karen Hodges by Chris Petrikas, David Ryan and Ian Wedge on or about 26 August 2016) including each item that was attached to it. 21. All Agendas for, minutes of meeting of (draft and final), recordings of, and transcriptions of recordings of, the South Sector Meeting of the NSW Rural Fire Service on 20 July 2016. 22. The records and official briefing notes that are required to be kept by Group Officers Chris Petrikas, Ian Wedge and David Ryan that relate to the meeting of 20 July 2016, the complaint and investigation of Graeme Jay and/or John Peters and the outcome of those investigations, for the period 1 July 2016 - 1 June 2018." (Emphasis added)
However, according to Mr Cantrill's affidavit, the first notice he had of an amended pleading involving a defamation claim against Ms Hodges occurred at 5:31pm on Friday 30 August 2019 when he received a letter from Mr Conolly enclosing by way of service an Amended Statement of Claim seeking to join Ms Hodges to the proceedings and to bring a claim for defamation against her. This letter also stated: "3. We intend to seek urgently an extension of time pursuant to ss 14B and 56A Limitation Act 1969 (NSW) to propound the cause of action against Ms Hodges. 4. To this end we will serve a motion and affidavit in support shortly and seek that the Court hear the application next week. Could you please, at your earliest convenience, indicate to us: (a) whether you have instructions to accept service on behalf of Ms Hodges; and (b) if you do have instructions to appear for Ms Hodges what dates you have available in the next 2 weeks so that we may have the matter listed on a date that is convenient to you."
The test to be applied to the plaintiffs' application needs to be considered in two stages: 1. The twelve-month period following the agreed date of publication (5 September 2016); and 2. The two-year period up until expiry of the extension of time (5 September 2019).

The period prior to the expiry of the limitation period

As at 31 July 2017 or soon thereafter, the plaintiffs and their legal representatives were aware not merely of the existence of a briefing note dated 5 September 2016 annexing complaints concerning the conduct of the plaintiffs at a meeting on 20 July 2016, but also that its contents were likely to be consistent with the relevant portion of Ms Hodges' statement. This meant that they were on notice as to the defamatory nature, not only of the statements made by Ms Hodges in her statement, but also of the likelihood that the contents of the briefing note were similar.
The only steps the plaintiffs took prior to the expiry of the limitation period were to request a copy of this document on 21 and 24 August 2017.
Mr Richardson submits (written submissions, paragraphs 25) that an application for preliminary discovery could have been made in the five weeks prior to expiry of the limitation period.
Mr Rasmussen submitted, as to the issue of limitation generally, that the plaintiffs had to wait until the proceedings were completed and the matter complained of was produced. The plaintiffs' solicitors did all they could in the short time remaining.
As to the first of these submissions, the complaints against the plaintiffs were work-related disciplinary matters. There is no evidence as to how serious the breaches in question would be disregarded. I am prepared to assume they may have, if substantiated, resulted in their dismissal, but this falls well short of the test in Houda v State of New South Wales, namely for there to be proceedings where there was a right to silence. The fact that there was an ongoing inquiry into the plaintiffs' conduct should not have deterred them from commencing proceedings for defamation.
However, Mr Rasmussen's submission that time was very short and all the solicitors could do was to ask for the document is a reasonable one. In practical terms, the likelihood of proceedings for preliminary discovery resulting in production of any documents in such a short period is problematic.
Accordingly, in circumstances where there had been two requests for the material and it had not been provided, and where only a very short period (weeks, or even days) of the limitation period remained, the plaintiffs have satisfied the test that it was not reasonable to commence proceedings by 6 September 2017, and accordingly an extension of time should be granted.

The second and third years

It is the delay following the expiry of the limitation period which is acknowledged by the parties to be the main issue in relation to this application.
Mr Richardson outlines these delays as being as follows: 1. There is no explanation of the delay between the expiry of the limitation period on 6 September 2017 and the seeking of the report under GIPA in April 2018. 2. There is a nine-month delay following the handing down of the GIPA decision on 8 June 2018 and the commencement of proceedings on 6 March 2019, during which time the plaintiffs were aware of advice to bring an application for preliminary discovery, as the plaintiffs' solicitors' letter of 8 June 2018 confirms. 3. In particular, from October 2018 to the commencement of proceedings on 6 March, there is a gap of almost five months, although this follows requests in the previous month for an apology and other remedies for the "highly defamatory" publications by the defendants, where the defendants' solicitors' response was to put them on notice as to the limitation period for defamation proceedings. (These requests for an apology were not, however, made to Ms Hodge). 4. There is then further delay from the time proceedings are commenced, in that no application for preliminary discovery, and the subpoena was not issued until 11 June 2019.

Delay after expiry of the limitation period and Barrett v TCN Channel Nine Pty Ltd

Failure to bring proceedings within twelve months may be explicable on the facts as at the date of accrual of that period, but a plaintiff who is not assiduous in his or her endeavours thereafter faces the same test afterwards as before. The risk of delay after the twelve-month period has expired is underlined by McColl JA in Barrett v TCN Channel Nine Pty Ltd, where the plaintiff had failed to commence proceedings within the first year, but where the unexplained five-month period of inactivity during the second year, at a time when the plaintiff had access to legal advice, justified a refusal to extend the limitation period (at [42]).
The extension of the test for the two-year period was explained by McColl JA in clear terms: "[73] The contestable area turns on how the court is required to exercise the obligation to extend the limitation period: whether, as the appellant submits, by extending it to whatever date the plaintiff commenced the defamation proceedings or, as the respondent submits, by exercising a discretion as to the length of the extension. [74] In my view, the text of s 56A(2) does not support the construction for which the appellant contends. [75] The not reasonable test confines the court's consideration to the circumstances of the plaintiff's failure to commence the defamation action within the one year limitation period. Once that test is satisfied, there is no focus on any particular act or date. Rather, the period of the extension which the court must grant is at large, save to the extent that it must not exceed three years from the date of publication. The generality of the words "extend the limitation period … to a period of up to 3 years…" [emphasis added] clearly, in my view, gives the court a discretion as to the period of the extension. The court is required to choose the date to which the limitation period should be extended."
McColl JA applied the test to the facts of that case as follows: "[42] The fact that the appellant's lawyers delayed in commencing proceedings for five months after receiving instructions was unexplained and therefore the appellant had failed to demonstrate that it was not reasonable to institute the proceedings until 20 October 2015."
Payne JA (with whom Simpson JA agrees) observed at [112]: "[112] Where, as in the present case, the court was faced with an unexplained delay of five months after the time that the plaintiff was aware of all the matters relating to the alleged defamation and had access to legal advice about possible causes of action, the appellant's construction would have the effect that the primary judge was bound to treat as irrelevant that unexplained delay of five months in commencing proceedings. I would strain to avoid that result."
Mr Richardson submits that whether or not it was "not reasonable" to commence proceedings within the five weeks remaining in the twelve month period, the failure to proactively seek this document and commence proceedings, at the very least between 8 June 2018 and 6 March 2019, must fail for the same reasons as those set out in Barrett v TCN Channel Nine Pty Ltd at [42] and [112]. His submissions may be summarised as follows: 1. The plaintiffs were already "aware of all the matters" (Barrett v TCN Channel Nine Pty Ltd at [112]) from 31 July 2017, in that they had had the statement of Ms Hodges which did not merely refer to her covering letter but summarised part of its contents (in paragraph 10 of the statement). 2. The plaintiffs had access to legal advice about possible causes of action, in that the solicitor who had acted for them since the complaints process began had not only sought this document as early as July 2017, but also had warned of an application for discovery before action on 8 June 2018. Although Mr Richardson's primary position was that there was no need for this document in order to commence proceedings, if this document was in fact required, the plaintiffs were properly advised as to the course to take to get it. Despite this, no such application was brought during 2018 or at the time the proceedings were commenced. The time for extension that McColl JA states (The time for extension that McColl JA states (Barrett v TCN Channel Nine Pty Ltd at [75]) that the Court is required to make should accrue a reasonable time after that date to allow for such an application to have been made, which in Lakaev v Denny was "within weeks" (at [52]) (Mr Richardson did not, however, nominate a precise date). 3. The plaintiffs still had enough time after 5 August 2019 to read the matter complained of and to commence proceedings before 6 September 2019 (this argument was abandoned when Mr Richardson conceded the s 63 point).

Were the plaintiffs entitled to wait until the document was in their possession?

Mr Rasmussen submitted that no matter how much information the plaintiffs had as to the matter complained of, they were entitled to wait until they actually saw the document: Houda v State of New South Wales. The document in question did not come into the plaintiffs' possession until the revised bundle of documents provided in answer to the subpoena was made available on 5 August 2019. He submits that no solicitor would advise commencing proceedings for defamation until the actual text of the matter complained of was available.
Is it necessary for the plaintiff to have seen the actual document before he or she may be taken to have known of its existence, and is this the principle that Houda v State of New South Wales stands for? As McCallum J notes (at [12]), the statute plainly contemplates the existence of circumstances where it will not be reasonable to commence proceedings within one year of publication; however, her Honour adds that "care must be taken in that context to distinguish between the reasonableness of commencing an action within that year and the reasonableness of allowing a limitation period to expire" where the provisions focus on the passage of time rather than on the reasonableness of ignoring the limitation period.
In Houda v State of New South Wales, the plaintiff had the matter complained of but did not commence proceedings within time because another crucial element in his defamation claim, namely the merits of the case, was missing. McCallum J outlined the implications of this missing element at [28]-[30]: "[28] The defendant submitted that the criminal proceedings posed no impediment to the commencement of proceedings for defamation during the year after 17 September 2010. It was submitted that Mr Houda was aware of and had proof available for all of the elements necessary to prove a claim for defamation. The defendant submitted that the kind of circumstance commonly referred to in the authorities in which it would be "not reasonable" for a plaintiff to commence proceedings within time was when the plaintiff was unaware of the publication or the identity of the publisher: see for example Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676. [29] In my view, the question whether it is reasonable or, conversely, not reasonable to commence proceedings entails consideration of more than just the known existence of the elements of the cause of action. A publication is actionable if it conveys meanings defamatory of a person. However, that says little about the wisdom of pursuing such an action, which requires careful consideration of any likely defences. Whilst that is largely a matter of common sense for which no authority is needed, it is a proposition which finds endorsement in the obiter remarks of Hunt J in NRMA Insurance Ltd v Flanagan [1982] 1 NSWLR 585 at 599B where his Honour said: No plaintiff properly advised should ever embark upon a defamation action unless he is prepared to litigate the truth of the imputations of which he complains, or of other imputations also conveyed by the matter complained of which are contextual to them. [30] It was submitted on behalf of the defendant that those remarks must be read in the context that the investigation of defences potentially available to the defendant should not put the plaintiff "in breach of" the Limitation Act. It is not strictly accurate to speak in terms of breaching the Limitation Act. The Act is not prescriptive. It simply provides a consequence for failing to commence an action within a limitation period prescribed under the Act, which is that the action is not maintainable unless the Court makes an order extending that period."
It was for these reasons, and not because of a missing document, that the test for "not reasonable" was met. The criminal charges had priority as a forum (at [30]). While the same result occurred in State of Queensland v O'Keefe (at [30] - [33]), in both cases, the court warned that not every case would be viewed in this way, even where the compelling factors of criminal proceedings were intertwined with the facts underpinning the defamatory publication; see also Spedding v Dailymail.com Australia Pty Ltd [2016] NSWSC 1963.
Mr Rasmussen submits that the ratio of these decisions must be read as indicating that until a plaintiff has all the elements of a claim (including, in particular, the actual publication), it is not reasonable to commence proceedings, and that Houda v State of New South Wales supports his contention that all elements necessary for the solicitor to sign the certificate must be available. Notwithstanding the indications as to the briefing note's contents given in Ms Hodges' statement, he argues that the plaintiff cannot know what is said and whether to sue, and no solicitor could verify the pleadings.
As the courts' observations set out above demonstrate, that is not how courts have interpreted the obligation of parties to conduct defamation litigation. The court's interpretation of "not unreasonable" includes expectations of the parties to be proactive in obtaining the matter complained of and/or information about the identity of the publisher. Unlike the issue of the right to silence, these are problems that can be overcome.
Additionally, a plaintiff is not entitled to request a document and then wait until that document comes into his or her possession for the test to be satisfied, particularly where (as is the case here) its contents can be suspected and there are procedures to obtain it, such as an application for preliminary discovery.

Failure to proceed with the foreshadowed application for preliminary discovery

The plaintiffs were aware of their entitlement to seek preliminary discovery. In their letter of 8 June 2018, the plaintiffs warned that they would bring an application for preliminary discovery if they were not provided with the document in question, but they never took this step.
The plaintiffs' submission (page 4) is that preliminary discovery would be "absolutely hopeless" (T 31) as it would not have been available to the plaintiffs because the persons who had been sued are servants or agents of the NSW RFS.
I do not accept this submission. Leaving aside issues of liability for publication by the NSW RFS, r 5.3 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") provides: "5.3 Discovery of documents from prospective defendant (1) If it appears to the court that: (a) the applicant may be entitled to make a claim for relief from the court against a person ("the prospective defendant") but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and (b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and (c) inspection of such a document would assist the applicant to make the decision concerned, the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person's possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief. (2) An order under this rule with respect to any document held by a corporation may be addressed to any officer or former officer of the corporation. (3) Unless the court orders otherwise, an application for an order under this rule: (a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and (b) must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed. (4) This rule applies, with any necessary modification, where the applicant, being a party to proceedings, wishes to decide whether or not to claim or cross-claim against a person who is not a party to the proceedings."
This permits discovery of documents from a prospective defendant or a person or body associated with them. This was clearly the reason for the plaintiffs' solicitor's letter of 8 June 2018. The plaintiffs were well aware who the prospective defendant was, because they already had evidence of there being a document which was being withheld from them. Mr Rasmussen acknowledged (T 9) that what his clients were looking for when the subpoena was issued was "what we found" (T 9).
For an application for preliminary discovery to succeed, the following must be established: 1. The applicant may be entitled to make a claim for relief (UCPR r 5.3(1)(a)); 2. The applicant has made reasonable inquiries (UCPR r 5.3(1)(a)); 3. Notwithstanding those reasonable inquiries, the applicant has been unable to obtain information to determine whether or not to commence proceedings (UCPR r 5.3(1)(a)); 4. The prospective defendant may have a document which could assist in determining this (UCPR r 5.3); and 5. Inspection of the document would assist the applicant to decide whether or not to commence proceedings.
This would have been a clear case of a request for the briefing note falling within such categories. The document obviously exists, as opposed to a mere possibility (see Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506) and there was clear evidence of reasonable inquiry, in that letters had been written requesting the document and it had not been provided. The application could have been brought against Ms Hodges personally and/or the NSW RFS. Given a degree of specificity of the material sought in the subpoenae, the request for this document would have been included amongst a series of other such documents, which would have assisted the plaintiffs in determining whether their cause of action was one for injurious falsehood or whether they could still bring an action for defamation. Despite warning of such an application would be brought, and that indemnity costs would be sought if 2the application was successful, the plaintiffs made no such application.
In Wookey v Quigley (No 2) a plaintiff who was dilatory in an (ultimately successful) application for non-party discovery from the plaintiff's employer was fatal (at [55] and [85]): "[55] Here, I am not satisfied that in respect of the facsimile communications of 19 and 21 January 2009, it was 'not reasonable' in all the circumstances for the plaintiff to have delayed past Friday 15 January 2010, when her solicitors wrote to the defendant's solicitors showing their correct appreciation of the position. In my assessment, the plaintiff should have immediately commenced fresh proceedings by the issue of a generally indorsed writ, by the close of business on Friday 15 January 2010: see O 6 r 2 and r 3(b) of the RSC. The fresh proceedings, in due course, could then have been consolidated with these proceedings. Protective conduct of that nature would have obviated all arguments over the elapsing of the one‑year s 15 limitation period subsequent to publication of these alleged defamatory facsimiles of 19 and 21 January 2009. … [85] Here, in all the circumstances, I am once again not satisfied that it was 'not reasonable' for this plaintiff to have waited until the pleadings closed in November 2009, before pursuing her application for non‑party discovery against her employer. Accordingly, the plaintiff has not met the threshold for an extension as imposed under s 40(2). I would also decline therefore to grant an extension under s 40(2), as regards the communications of 13 and 14 January 2009."
The same was the case in Lakaev v Denny at [52], where McCallum J noted that, when the application was finally made, it was "heard and determined within weeks": "[52] The defendants submitted that the obvious step available to the plaintiff during 2007 to discover or confirm the identity of those defaming her was to seek an order for preliminary discovery. She did not do so until February 2009, despite apparently instructing her lawyers to make the application in February 2008. When she finally did file a summons seeking such an order, the application was heard and determined within weeks of that date. On 8 April 2009 Adams J made comprehensive orders for preliminary discovery inclusive of an order imposing on the defendants the obligation of providing to a jointly retained forensic expert access to their personal computers and any passwords necessary to facilitate access to the hard drives of those computers."
As is the case here, there was "no evidence from the solicitors or counsel explaining or accounting for the delay" (at [55]), in terms of the period following the letter of 8 June 2018 warning that such an application was being considered. Observations to this effect have also been made at intermediate appellate court level in Slaveska v State of Victoria and Others [119]-[126], where Warren CJ, Tate JA and Ginnane AJA considered that even a litigant in person could be expected to avail themselves of such a procedure.
Mr Rasmussen submitted that it was irrelevant for me to inquire as to what steps the plaintiffs were taking between 8 June 2018 and 6 March 2019, on the basis that the plaintiffs had not commenced proceedings for defamation, but for injurious falsehood (where the limitation period is six years).
However, the plaintiffs now seek to bring an action against Ms Hodges for defamation, not for injurious falsehood, and their delay in commencing these proceedings (and in bringing any application for preliminary discovery) cannot avoid scrutiny merely because the other causes of action already pleaded are for injurious falsehood. The fact that they did commence proceedings during the two-year period, for the same publications (except Ms Hodges' briefing note) is suggestive that they were considering their reputation rights over the period, although Mr Richardson did not put this in terms, despite the overlap in terms of content between the documents the subject of the injurious falsehood claim and the documents (except the briefing note cover to the statements) the subject of this application.

Delay during the period 6 March - 11 June 2019

Mr Rasmussen complains that the defendants themselves were guilty of delay in that they took almost three months (6 March to 11 June 2019) to obtain representation (T 11).
The court's orders dated 4 April 2018 noted that the second defendant had not yet been served and that the first and third defendants were making an application for legal assistance to the Commissioner of NSW RFS. On the next return date 16 May 2019, the proceedings was stood over to 13 June 2019 for a timetable. This is not a significant delay by self-represented persons of the kind which would excuse the plaintiffs from prosecuting their claims against Ms Hodges with diligence. If the plaintiffs were still considering a claim for defamation in relation to the briefing note, they could have brought an application for discovery before suit at the time of commencement of the proceedings, as has occurred in other cases (see, for example, Szymczak v Balijepalli [2019] FCA 203).

Conclusions

For the reasons set out above, I am satisfied that the plaintiffs have discharged the burden of establishing it was not reasonable for them to have commenced proceedings against Ms Hodges prior to 6 September 2017.
The failure to proceed with the plaintiffs' foreshadowed application for documentation set out in the 8 June 2018 letter is fatal, for the same reasons as those set out in Wookey v Quigley (No 2) at [55] and [85] and Lakaev v Denny at [52] and [55]. Conformably with the explanation by McColl JA of the court's discretion, any extension of time granted to commence proceedings would be limited to the end of October (i.e. 31 October 2018), which would have been sufficient time for preliminary discovery to have been sought.
Mr Richardson pointed alternatively to the total lack of explanation for the period October 2018 to the commencement of proceedings on 5 March 2019. If I have erred in my findings in relation to the plaintiffs' failure to seek preliminary discovery, and the date should be 5 March 2019, the plaintiffs' unexplained failure to take any steps at all during this five-month period would, for the same reasons as in Barrett v TCN Channel Nine Pty Ltd, warrant a refusal of the exercise of discretion.
Finally, I note I have not accepted the plaintiffs' explanation for the delay in seeking preliminary discovery at the same time as the commencement of the injurious falsehood proceedings.
The result of any of the above (or all) these delays is that the plaintiffs have failed to discharge the burden of proving it was not reasonable for them to have commenced proceedings after expiry of the twelve-month limitation period for the reasons explained by McColl JA in Barrett v TCN Channel Nine Pty Ltd at [42] and [72]-[74].

Costs

I was not addressed on the issue of costs and accordingly I have reserved this issue with liberty to apply.

Orders 1. An order granting leave to the plaintiffs to amend the motion filed 6 September 2019. 2. An order pursuant to s 63(2) of the Civil Procedure Act 2005 (NSW) that the Amended Statement of Claim lodged for filing on 30 August 2019 be treated as having been duly filed by the District Court Registry at Sydney on that date (30 August 2019). 3. The plaintiffs' application pursuant to s 56A(2) of the Limitation Act 1969 (NSW) extending the limitation period provided by s 14B of the Defamation Act 2005 (NSW) so as to commence a claim in defamation against Ms Karen Hodges as set out in the Amended Statement of Claim filed in proceedings No. 2019/72815 is dismissed. 4. Cost reserved with liberty to apply. 5. Liberty to the parties to bring in Short Minutes of Order reflecting a timetable for the conduct of these proceedings in 7 days. 6. Exhibits retained for 28 days.

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 2019

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