Onakoya v The Sydney Children's Hospital Network

Applications to be determined

1. This judgment deals with two notices of motion heard together. The first motion is Mathew and Olamide's motion containing two prayers for relief. The first is for an order for an extension of time nunc pro tunc to commence defamation proceedings by 18 September 2023. The second is an order granting leave to file the proposed amended statement of claim as an amendment of the pleading first filed on 1 April 2022.
2. The defendant's motion filed on 15 September 2023 seeks the following substantive prayer for relief: "If an order is made pursuant to s 56A of the Limitation Act 1969 (NSW) and leave is granted to Mr Matthew Onakoya and Mrs Olamide Onakoya to file the proposed amended statemen of claim appearing at Exhibit 2 to Mr Onakoya's affidavit affirmed 22 June 2023 (PSOC) (which the defendant opposes), the PSOC should be struck out pursuant to UCPR 14.28(1)(a) or (d) or dismissed pursuant to UCPRI 13.4(1)(b)".
3. The issues are: 1. must leave to extend time be refused because the maximum period during which time may be extended under s 56A, i.e., three years from the date of publication, has expired; 2. in the alternative, whether the plaintiffs have established the statutory condition for the exercise of the court's discretion to extend time "that it was not reasonable in the circumstances for the plaintiff to have commenced the action within the limitation period of 1 year from the date of publication"; 3. should the proposed amended statement of claim be struck out as disclosing no reasonable cause of action or as having a tendency to cause prejudice, embarrassment or delay; and 4. whether the proceedings for defamation should be summarily dismissed on General Steel Industries Inc. v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 principles.

Relevant statutory provisions

1. Key provisions of the Limitation Act 1969 (NSW) (the "Act") referrable to actions for defamation were amended by the Defamation Amendment Act 2020 (NSW). Those amendments, however, apply in relation to the publication of defamatory matter after the commencement of the amendments on 1 July 2021: Sch 5, Pt 4, cll 11(1), (4). The present case continues to be governed, therefore, by the Act as it stood on 14 August 2019, the date of the publication upon which Mathew and Olamide sue.
2. By s 14B of the Act, 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. Clearly, this action was not so brought. Section 56A of the Act empowered the Court to extend the limitation period in limited circumstances. The key provision was s 56A(2). It provided: "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 s 14B to a period of up to 3 years running from the date of the publication." By s 56D, an order for the extension of the limitation period may be made nunc pro tunc "even though the limitation period has already expired".

Applicable principles

1. In Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [28], Simpson J (as her Honour then was) pointed out that s 56A differed somewhat from those provisions permitting the extension of a limitation provision on just and reasonable grounds or providing some other flexible exception to the period of limitation. Her Honour said: "[Section 56A] differs from such provisions in two respects. Firstly, it requires the plaintiff to prove that it was not reasonable to commence proceedings within time; secondly, far from conferring a discretion on the court to extend time if the plaintiff proves that fact, it obliges the court to extend time. Extension, in those circumstances, is mandatory."
2. In Ritson v Gay and Lesbian Community Publishing Limited [2012] NSWSC 483 at [14]-[15], Beech-Jones J (as his Honour then was) explained the difficult task facing a plaintiff required to prove that it was not reasonable to bring the action within the limitation period in the following terms: "First, the burden imposed upon a party applicant seeking an extension is a heavy one. It is not sufficient for them to prove that it was reasonable for them to delay commencing proceedings. Rather they are driven to demonstrating that it was not reasonable for them to start within the 12 month period (Ahmed at [39]). Not surprisingly this has been described as a "difficult hurdle" (Rayney at [41]) and one which can only be satisfied in "relatively unusual circumstances" (Noonan at [15], per Keane JA). Second, the test is an objective one requiring a consideration of the circumstances "as they appear objectively to the court" (Noonan at [20], per Keane JA). Ignorance on the part of the plaintiff as to the time limits specified cannot afford a reasonable basis for not commencing proceedings (Noonan at [22] per Keane JA). However, this does not mean that the plaintiff's motivations or thought processes are irrelevant (Carey at [46] to [48]). In Carey McCallum J approved the following as a statement of the correct approach (at [48]): " .... the test requires attention to the plaintiff's actual reasons, as they are a vital part of the circumstances pertinent to whether it was reasonable or not to bring to the proceedings within the nominated period."" (Rayney is a reference to Rayney v State of Western Australia (No 3) [2010] WASC 83; Noonan to Noonan v MacLennan [2010] 2 QdR 537; [2010] QCA 50; and Carey to Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176).
3. The principles enunciated by Simpson J and Beech-Jones J are the same as those expressed in Barrett v TCN Chanel 9 Pty Ltd (2017) NSWLR 478; [2017] NSWCA 304 (per McColl JA at [69]-[84]; Simpson JA agreeing at [108]; and Payne JA at [114] and [117]).
4. In Barrett, McColl JA (at [71]-[72]) emphasised that the "not reasonable test" is a difficult one to satisfy. Normally it will require the applicant to establish something "relatively unusual", "special" or "compelling": Noonan at [67] (per Chesterman JA).
5. Her Honour also pointed out that while satisfaction of the "not reasonable test" mandates an extension of time, the court retains a general discretion as to the period of extension allowed: Barrett at [75]. As the purpose of the Act's provisions applying to defamation actions is requiring such actions to be brought and determined promptly, as the outcome in Barrett itself demonstrates a plaintiff may tarry too long after the expiration of the period during which it was not reasonable to commence proceedings such that the extension properly allowable within the maximum period of three years may yet fall short of the date upon which the plaintiff commenced the action so that those proceedings are fatally out of time (Barrett at [91]; O'Sullivan v Farrer (1989) 168 CLR 210 at 216; [1989] HCA 61 (per Mason CJ, Brennan, Dawson and Gaudron JJ).
6. Given that the defendant has raised the General Steel principles in argument, I think it well to observe that I am not aware of any authority dealing with the question whether the legal bounds of the general discretion permit a refusal of the express statutory mandate to extend time notwithstanding the satisfaction of the "not reasonable test" on the ground that the action is clearly untenable in the General Steel sense. In a different limitation of action context, it would not be "just and reasonable" to permit an action to proceed unless the plaintiff demonstrated by evidence led on the application for extension of time that the action had at least some prospect of success at final hearing: cf Drayton Coal Pty Ltd v Drain [1995] NSWCA 131.

The first issue - the applicability of the long stop limitation period

1. I understood Ms Roberts of counsel, who appears for the defendant, to argue that Mathew and Olamide's action for defamation was fatally flawed because no proceedings claiming damages for defamation had been properly commenced before the filing of the proposed amended statement of claim referrable to the defamation claim (Exhibit 2) on 22 June 2023. This was beyond what might be described as the s 56A "long stop" limitation period of 3 years from the date of publication. This argument is premised upon the establishment of the fact that the statement of claim filed by Mathew on 1 April 2022 did not articulate a claim for defamation. Clearly the PSOC was not filed within 3 years of the date of publication of the impugned report of the forensic paediatrician.
2. I am not persuaded that this argument is correct. In my view, while the statement of claim filed on 1 April 2022 was irregular because it joined Oluwatomi's personal injuries claim and Mathew and Olamide's defamation claim in the one proceedings, and did not comply with the requirements for pleading and particularising a claim for damages for defamation, in my view it did, in substance, seek to raise a defamation claim not only by articulating such a claim in the prayers for relief, but also by pleading facts upon which it was advanced in those passages in the statement of claim to which I have referred to above (at [23]-[24]).
3. While r 14.30(1) Uniform Civil Procedure Rules 2005 (NSW) was contravened because allegations were made that the matter complained of was "false", and r 14.30(2) was not complied with, the substance of the complaint was clear i.e., that the forensic paediatrician expressed the opinion that Mathew and Olamide were persons who caused harm to their baby daughter. It has now been made clear by way of further and better particulars that the publication relied upon is the more extensive report of 14 August 2019 which incorporates the earlier report of 11 June 2019. Clearly, as Ms Roberts has correctly pointed out, the original statement of claim and the proposed amended statement of claim are also irregular by the failure to draft them in compliance with the provisions of Div 4 of Pt 15 UCPR and in particular r 15.19, a matter to which I will return. But I am not satisfied that the plaintiff's action for defamation is not salvageable because it is necessarily beyond the powers conferred on the Court by s 56A of the Act.

The second issue - was it not reasonable in the circumstances for the plaintiff's to have commenced the action within 1 year of publication

1. As I have made clear, Mathew relies upon the publication of the forensic paediatrician's report of 14 August 2019, a copy of which, it is common ground, was provided to him under cover of an email dated 28 August 2019. As I have stated, the report of 14 August 2019 incorporated the earlier report of 11 June 2019. On the basis of the later report, the JCPRP found that the allegations that Mathew and Olamide had physically harmed Oluwatomi were substantiated. They were publicly listed as Persons Causing Harm.
2. Mathew argues that it was not reasonable for him and his wife to have commenced an action for defamation within 1 year of the 14 August 2019 in all the circumstances as it was a practical necessity for him to have that finding not only set aside, but replaced by a finding that the allegation was not substantiated and to have his and his wife's names deleted from the list of Persons Causing Harm. The exoneration, as it were, of him and his wife did not occur until 16 October 2021 and Mathew and Olamide were not advised of it until they received a letter of the Director JCPRP dated 1 November 2021.
3. It may not have been a legal necessity for Mathew to have had the adverse finding against him and his wife reversed before commencing defamation proceedings. Obviously, the facts underpinning the adverse finding could have been challenged in the defamation proceedings. A court would not have been bound by the administrative action of DCJ. At the same time, there can be no doubt that the defendant, properly advised, would utilise the adverse findings against Mathew and Olamide. At a practical level the adverse finding would have been a very large obstacle in their path to successfully prosecuting an action for defamation. And the failure to take action to have the record corrected would inevitably have been deployed to the attempted forensic advantage of the defendant.
4. It may be that the adverse finding was not in the same category as an ongoing police investigation, or criminal prosecution for that matter, which may make it not reasonable in the circumstances for a person to delay bringing an action for defamation until the investigation or prosecution is resolved in his or her favour. Here, of course, the police investigation was shut down at an early stage because investigators deemed the evidence to be inconclusive and incapable of supporting a prosecution. Even if that decision had been reviewed in the middle of 2021, nothing seems to have come of that review.
5. But an ongoing police investigation or criminal prosecution cannot be the only circumstance capable of supporting a finding that it was not reasonable to commence an action for defamation within time. The evidence before me, which I have attempted to summarise above under the heading "Background facts" certainly shows that Mathew was persistent and diligent in locating evidence to undermine the adverse finding and tenacious in articulating his complaints to DCJ, and other relevant authorities, including the responsible minister. There was no lack of application on his part.
6. I am of the view that Mathew's persistence and diligence in pursuing the matter was impressive for a number of reasons. First, his personal circumstances must be appreciated. He and his wife were immigrants from Nigeria working hard to establish themselves in their new homeland. Following Oluwatomi's birth and the emergence of her severe disabilities, it was necessary for Olamide to give up her employment to care for a disabled baby. Mathew and Olamide, as I have pointed out, were already the parents of two young children and the demands of family on them would have been considerable, and considerably time consuming, during this period. Mathew was also in full time employment. Oluwatomi's disability had reduced the family situation to the position where he was the sole breadwinner with an onerous burden of fulltime work and domestic responsibilities. Mathew's time was doubtless strictly limited. That he was able to pursue and eventually obtain a review of DCJ's adverse finding against him and his wife is a considerable achievement given the adversities under which he was forced to labour.
7. To my mind, all of these circumstances together combine to satisfy the difficult test imposed by s 56A of the Act by use of the phrase "not reasonable to commence proceedings" within the time limited by s 14B of the Act. If at the practical level the test requires something relatively "unusual", "special" or "compelling" as expressed in Noonan and applied in Barrett, I am satisfied that these circumstances taken together satisfy that test.
8. Having made this finding, I am required by law to extend the limitation period mentioned in s 14B of the Act. It remains to exercise the general discretion to determine the length of the extension properly permissible, having regard to the legislative purpose underpinning ss 14B and 56A. I have already indicated that I am satisfied that the irregular statement of claim filed on 1 June 2022 clearly articulates a claim for damages for defamation on behalf of both Mathew and Olamide. The question is what the justice of the situation requires, bearing in mind the position of each of the plaintiff and the defendant, as well as the statutory purpose that claims for damages in defamation should be brought and determined relatively promptly. Is an extension to 1 June 2022, a period of some 7 months after the letter of 1 November 2021, too long? I am of the view this is the correct approach to crystalising the issue. To proceed otherwise is to adopt too abstract an approach not rooted in the actual circumstances of the case.
9. Mathew's personal circumstances had not changed. While he may have been able to find a lawyer to assume the carriage of Oluwatomi's claim for damages, I am doubtful that he could have readily found a lawyer experienced in media law or the like to accept a retainer in this defamation action which is bound to have its own difficulties and uncertainties on a "no win, no fee" basis.
10. I do not understand the defendant to assert any forensic prejudice. It is clear that the forensic paediatrician was asked to re-visit the matter in September 2021 by reference to specific issues identified by the investigator reviewing the adverse finding and was able to strongly maintain her original opinion. There is no suggestion of any relevant loss of evidence between 1 November 2021 and 1 June 2022, or subsequently.
11. In all of the circumstances, I am satisfied that I should order an extension of time under s 56A of the Act up to 1 June 2022 nunc pro tunc under s 56D of the Act.

The third and fourth issues - no disclosure of a reasonable cause of action

1. So far as the third issue is concerned, there is no doubt that the proposed amended statement of claim (Exhibit 2) is irregular in as much as it does not comply with the rules that I have already identified (at [38] above), and it should be struck out for that reason alone with a direction that it be re-pleaded in conformity to the rules. I accept that Mathew has had more than one opportunity to put the pleadings in order. It is also correct to say that being self-represented is not a privilege, rather it is a misfortune or at the very least, a disadvantage. However, I am of the view that a further opportunity should be allowed, even if it may be regarded as a last opportunity to bring forward a compliant pleading. It is evident that Mathew is an intelligent man of some intellectual energy and compliance of the rules should not be beyond him. It is required of him in any event. Given his personal circumstances, I would be inclined to permit a fairly generous period of six weeks for this to be done. I am not satisfied that the proposed amended statement of claim is otherwise an abuse of process for the purpose of r.14.28 UCPR. I will make an order directing that Mathew re-plead.
2. I turn then to the fourth issue which is whether the proceedings should be summarily dismissed as being clearly untenable in accordance with the principles expressed in General Steel and elsewhere.
3. While doubtless there may be other defences which will be pleaded once a compliant statement of claim is brought forward, for this purpose Ms Roberts principally relied upon the provisions of s 245G Children and Young Persons (Care and Protection Act) 1998 (NSW) ("CYP Act"). There is no question that the 14 August 2019 report (and the earlier 11 June 2019 report), was prepared in accordance with Chapter 16A CYP Act. Section 245G creates a partial immunity in favour of persons providing information under Chapter 16A. It is in the following terms: "(1) This section applies if a person, acting in good faith, provides any information in accordance with this Chapter. (2) Any such person is not liable to any civil or criminal action, or any disciplinary action, for providing the information. (3) In providing the information, the person cannot be held to have breached any code of professional etiquette or ethics or departed from any accepted standards of professional conduct."
4. It is clear from a reading of the proposed amended statement of claim (Exhibit 2) that Mathew is seeking to anticipate a defence based upon s 245G by impugning the suggestion that the forensic paediatrician was "acting in good faith". Indeed, an obvious contravention of r 14.30(1) UCPR is that the proposed amended statement of claim is replete with averments, expressed in various ways, that the statements contained in the 14 August 2019 report, which he asserts are defamatory are false and intentionally so. If nothing else, these assertions suggest that there may be a triable issue about s 245G CYP Act.
5. An absence of good faith, or malice, always presents particular difficulties of proof. It seems to me obvious that this will be a very difficult to case for Mathew to make out, even bearing in mind the onus of establishing good faith will lie upon the defendant. But, on the material available to me, I am unable to conclude that s 245G renders the case of Mathew and Olamide either clearly untenable or beset by "plain and obvious" deficiencies so that an adverse outcome for Mathew and Olamide is the inevitable result.
6. Ms Roberts also invoked the principle expressed by Dixon J (as the Chief Justices then was) in Cox v Courneaux (No 2) (1935) 52 CLR 713; [1935] HCA 48 at 720 in the following terms: "The inherent jurisdiction of the Court to stay an action as vexatious is to be exercised only when the action is clearly without foundation and when to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff. The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed. A litigant is entitled to submit for determination according to the due course of procedure, a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped. That the Court is not concluded by the manner in which the litigant formulates his case in his pleadings. It may consider the undisputed facts. Further, it is not limited to cases where there is no dispute of fact." (Citations omitted) However from his review of the material put before him, his Honour decided, notwithstanding the stringency of the test articulated, "that the court should exercise its power to stop the action summarily. The plaintiff's case is clearly hopeless".
7. While I have reservations about Mathew and Olamide's prospects of success in the defamation action - overall its "foundation" appears "slender" - I am not persuaded that the case is "clearly hopeless". Considered in isolation, a statement that necessarily implies that they or one of them was responsible for inflicting traumatic brain injury on Oluwatomi by way of "shaken baby syndrome" is clearly defamatory. At this stage, there is no evidence before me of any particular "hardship" falling on the defendant by permitting the case to proceed in the usual way.
8. Apart from s 245G CYG Act, which does not confer an absolute immunity, no specific defence has been adverted to by the defendant. Given the context in which the report of 14 August 2019 was produced, it is of course, possible that one or other of the recognised common law or statutory defences under Defamation Act 2005 (NSW) will arise. In the absence of a considered formulation of relevant defences, at least defences of qualified privilege and honest opinion spring to mind. But it would be speculation on my part to purport to summarily dismiss the proceedings on the basis of one or other of those matters, especially having regard to provisions of s 24 of the Defamation Act.
9. Notwithstanding my misgivings, I am not persuaded that the defendant has discharged the burden of establishing a case for summary dismissal.

Orders

1. My orders are: 1. Under ss 56A and 56D Limitation Act 1969 (NSW), extend the time for bringing the action in defamation to the filing of the original statement of claim on 1 April 2022. 2. Under r 14.28 Uniform Civil Procedure Rules 2005 (NSW) strike out the proposed amended statement of claim (Exhibit 2) filed on 22 June 2023 and direct the plaintiffs file a further amended statement of claim in conformity with the requirements of the said rules for actions claiming damages for defamation within six weeks of the date of this order. 3. List for directions before the Common Law Case Management Registrar on 11 October 2024 at 9 am. 4. Grant liberty to the defendant to apply on short notice to the Court and the plaintiffs in the event of non-compliance with order (2). 5. Dismiss the defendant's application for summary dismissal. 6. The costs of the parties, in the case of the plaintiffs only to the extent to which they may be legally recoverable, are costs in the cause. If either party seeks a variation of this costs order, they are to lodge written submissions not exceeding 3 pages in length together with any necessary affidavit with my chambers within 14 days of todays date. The opposing party may have a period of a further 14 days to respond by lodging written submissions with my chambers not exceeding 3 pages in length.

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: 16 August 2024