Plaintiff v Defendant

2 In the plaintiff's statement of claim, she alleged that the review carried the imputations that:

(a) the plaintiff does not care about her patients' welfare;

(b) the plaintiff's only motivation in providing IVF services is to make money for the clinic;

(c) the plaintiff does not have sufficient knowledge to provide IVF services;

(d) patients seeking IVF services should avoid the plaintiff because they will not have a good experience;

(e) the plaintiff engages in poor management of her staff;

(f) the plaintiff does not attend consultations on time; and

(g) the plaintiff is unhelpful to her patients.

3 The plaintiff claims damages, including aggravated damages, on the basis that the review was published by the defendant, who is the husband of a competitor of the plaintiff.

4 The defendant, described in the writ and statement of claim as Mr Fabian Ippoliti, is indeed the husband of another provider of fertility services (including IVF treatment), Dr Lynn Burmeister.[1] In his defence filed on 14 May 2020, Mr Ippoliti denied that he posted the review.

5 Accordingly, the key issue in this proceeding is whether Mr Ippoliti in fact published the review.

6 As noted above, the review was published on or about 1 April 2018, and removed from the RateMDS website on or about 31 May 2018. Given this proceeding was filed on 21 February 2020, and assuming, for present purposes, that the plaintiff can prove that it was read by third parties in the period up to and including 31 May 2018,[2] the proceeding is, by reason of s 5 (1AAA) of the Limitation of Actions Act 1958 (Vic) ('LAA'), at least nine months out of time. Accordingly, the plaintiff brings an application pursuant to s 23B of the LAA, which provides as follows:

1. A person claiming to have a cause of action for defamation may apply to a court for an order extending the limitation period for the cause of action.
2. A court on an application under sub-s (1) 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 5(1AAA) to a period of up to 3 years from the date of 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).
4. If a court orders the extension of the period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.
5. An order for the extension of a limitation period, and an application for such an order, may be made under this section even though the limitation period has already expired.

7 The application is opposed by the defendant. Further, the defendant says that the plaintiff also needs to seek the leave of the Court to proceed pursuant to s 23 of the Defamation Act 2015 (Vic) ('Defamation Act'), which provides as follows:

If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same like matter, except with the leave of the court in which the further proceedings are to be brought.

8 The defendant contends that leave is required by reason of the plaintiff bringing a proceeding in the State of California ('Californian proceeding'), during the course of which the plaintiff obtained information from the operator of the RateMDs website about the IP address from which the review (and other publications concerning the plaintiff and others) was posted.

9 Prior to turning to the chronology of events and the evidence relied upon by the parties to this proceeding, the principles governing the applications for the extension of time under s 23B of the LAA, were summarised by Beach J in Casley v Australian Broadcasting Corporation ('Casley'):[3]

(a) First, under s 23B the burden is on the applicant for an extension of time to point to circumstances which make it not reasonable in the circumstances to have commenced a proceeding within one year from the date of the publication.

(b) Secondly, the circumstances that might give rise to an extension are left at large.

(c) Thirdly, the test posed by s 23B(2) is an objective one. It is not satisfied by showing that the applicant believed that he or she had good reason not to sue.

(d) Fourthly, if the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period, then it must extend the limitation period. Unlike other extension of time provisions, there is no discretion whether or not to extend the time. However, a discretion exists as to the length of the extension to be granted which, in any event, may not exceed three years from the date of the defamatory publication.

(e) Fifthly, the section requires more of an applicant than to show that it would have been reasonable not to commence a proceeding until after the one year period had expired: the court must be satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period.

(f) Sixthly, the circumstances must be sufficiently compelling to satisfy the court that it was not reasonable in the circumstances to commence a proceeding within the one year period the law ordinarily requires litigants to commence proceedings.

(g) Seventhly, s 23B of the Act proceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence a proceeding to vindicate his or her legal rights in accordance with that time limit.[4]

10 In Brott v FGD Pty Ltd & ors, ('Brott')[5] I referred to the principles in Casley[6] as follows:

The above formulation has been approved by the Court of Appeal, and referred to in a number of first instance decisions in Victoria and interstate. What is noteworthy for current purposes is that while the types of circumstances which might be taken into account in these applications is not limited, the language of s 23B of the Act means that those circumstances must be quite compelling for the Court to achieve the necessary degree of satisfaction before an extension of time is to be granted.[7]

11 Accordingly, the plaintiff in an application of the current kind bears a heavy onus: the plaintiff must show that it was not reasonable for her to commence an action for defamation within the twelve month period following the publication of the review, not that it was reasonable for her not to have done so. It is common ground that time does not begin to run until the plaintiff discovers the allegedly defamatory publication.[8] This is not a material issue in the current case, as the plaintiff became aware of the review some weeks before it was removed from the RateMDs website.

12 The relevant chronology of events is set out in the plaintiff's written outline of submissions, as follows:

(a) in early April 2018, Dr Knight found out about the review on the RateMDs website. She believe[d] that the review was fake;

(b) on 15 April 2018, Dr Knight and a colleague, Dr Fleur Cattrall, obtained legal advice about the review, among other things. Dr Cattrall had also been the subject of reviews on RateMDs which she believed were fake. Both of them are IVF specialists and provide services to Melbourne IVF, operated by Virtus;

(c) on 29 May 2018, Dr Cattrall contacted RateMDs and received a response on 31 May 2018;

(d) on 29 May 2018, Dr Knight contacted Mr Pullen at HWL Ebsworth, solicitors, about the review;

(e) on 31 May 2018, the review was removed from the RateMDs website;

(f) on 3 June 2018, Mr Pullen received a copy of the review from Dr Knight;

(g) during the period between 1 July 2018 and 7 August 2018, Dr Knight was on annual leave for 25 days;

(h) on 29 August 2018, Dr Knight sent an email to Mr Pullen, asking whether there had been any progress on requesting the IP address from RateMDs concerning the negative reviews about Dr Cattrall and her;

(i) on 30 August 2018, Mr Pullen responded referring to earlier discussions concerning the costs of briefing attorneys in California to undertake the task;

(j) on 7 September 2018, Mr Pullen sent an email to Dr Knight which stated, 'We will need to have search for suitable attorneys in California to issue subpoenas on MD Rate (sic). This will take a little time and then require further estimates from the US lawyers concerning procedures, timing and costs. Are you happy to proceed on that basis?'

(k) on that day, Dr Knight replied, 'Yes';

(l) after receiving Dr Knight's instructions, Mr Pullen and Ms Priya Wakhlu, an Associate at HWLE, identified an appropriate solicitor in the United States to progress the matter;

(m) on 1 October 2018, Ms Wakhlu sent an email to Mr Jeffrey Williams at the American firm of Wargo French;

(n) between 1 October 2018 and 11 October 2018, there was correspondence between Ms Wakhlu and Mr Williams in relation to the steps that could be taken by Dr Knight to identify the author of the review;

(o) on 14 October 2018, Ms Wakhlu sent an email to Dr Knight in relation to retaining Wargo French;

(p) on 16 October 2018, Dr Knight had a conversation with Ms Sue Channon, the Chief Executive Officer of Virtus, in relation to assisting in funding proceedings to identify the author of the review;

(q) on 9 November 2018, Ms Wakhlu sent an email to Mr Williams confirming that HWLE had instructions to retain Wargo French as solicitors for Dr Knight;

(r) between 13 and 20 November 2018, Dr Knight attended the Translational Reproductive Biology and Clinical Reproductive Endocrinology conference in New York;

(s) on 29 November 2018, Mr Pullen had a telephone conference with Dr Knight in relation to issuing proceedings in the United States. Later that day, Ms Wakhlu sent an email to Mr Williams requesting a copy of the engagement letter and details of Wargo French's trust account;

(t) on 5 December 2018, Mr Williams sent Ms Wakhlu a copy of the retainer letter;

(u) on 19 December 2018, Dr Knight attended another meeting with Ms Channon of Virtus in relation to funding the proceedings to identify the author;

(v) between 21 December 2018 and 28 December 2018, Dr Knight was on annual leave;

(w) on 23 January 2019, Dr Knight emailed Ms Wakhlu that she 'would like to proceed with the application to the USA court';

(x) during several days in February 2019, Dr Knight was involved in the Fertility Innovation in Reproductive Endocrinology Conference;

(y) on 26 March 2019, Ms Wakhlu sent Mr Williams a copy of the engagement letter;

(z) between 29 March 2019 and 14 June 2019, HWLE had a telephone conference with Mr Williams and Dr Knight, conferred with Mr Williams in relation to correspondence to be sent to RateMDs, conferred with Mr Williams in relation to the draft complaint to be filed on behalf of Dr Knight, and conferred with Dr Knight in relation to the complaint;

(aa) on 15 June 2019, Mr Pullen received an email from Mr Williams, which attached a copy of the subpoena responses from RateMDs;

(bb) on 19 June 2019, Mr Pullen received an email from Mr Williams, recommending, among other things, issuing a subpoena to Optus in respect of the IP address 220.237.112.253, which is the IP address for the review (Optus IP Address);

(cc) on 18 July 2019, HWL Ebsworth sent a letter to the Proper Officer of Optus Mobile Pty Ltd seeking details in relation to the Optus IP Address;

(dd) on 26 July 2019, Ms Wakhlu received an email from Mr David Finlay at Optus which said, '[t]o obtain the requested records you would need to issue this office with a subpoena';

(ee) on 30 August 2019, Dr Knight commenced proceedings in this Court seeking preliminary discovery from Optus;

(ff) on 8 November 2019, Dr Knight issued a summons seeking an order that judgment be entered;

(gg) on 3 December 2019, the Honourable Associate Justice Derham entered judgment against Optus;

(hh) on 4 December 2019, Mr Pullen received a letter from Optus stating that Mr Fabian Ippoliti was the holder of the Optus IP Address;

(ii) Mr Ippoliti is the husband or partner of Dr Lynne Burmeister, a competitor of Dr Knight;

(jj) Dr Burmeister operates the Number One Fertility Clinic which provides fertility treatments, IVF and relates services to patients;

(kk) Mr Ippoliti is involved in the day-to-day operations of the Number One Fertility Clinic;

(ll) on 18 December 2019, HWL Ebsworth sent a Concerns Notice to Mr Ippoliti;

(mm) on 13 January 2020, Mr Ippoliti responded by email:

I have absolutely no knowledge of the Review to which your letter refers, nor do I know how my IP address could be associated with such a review (if that is in fact what has occurred). I have never visited the site www.ratemds.com and prior to receipt of your letter I did not even know such website existed. I therefore strongly deny that I have defamed Dr Knight, and will not be providing the apology or compensation that you have sought on her behalf.

(nn) on 21 February 2020, the Writ in this proceeding was issued.

13 The above extract from the plaintiff's submissions summarises the evidence in the affidavit sworn by Mr Nicholas Pullen of HWL Ebsworth, the plaintiff's solicitor, on 21 February 2020. In addition to deposing to the facts referred to in the above chronology, Mr Pullen exhibited the following documents to his affidavit:

(a) a copy of the home page of the RateMDs website;

(b) a copy of the review;

(c) email correspondence between Dr Cattrall and a representative of RateMDs between 29 and 31 May 2018 regarding the removal of the review, and another adverse review of the plaintiff on the RateMDs website;

(d) emails from the plaintiff to Mr Pullen on 29 May 2018 and 3 June 2018 regarding the review, and requesting his assistance;

(e) an email from the plaintiff to him on 29 August 2018 regarding another adverse review on the Google website, and requesting whether there had been 'any progress on requesting the IP address from rate MD for the seven negative reviews for myself and Fleur'. On 30 August 2018, Mr Pullen replied as follows:

... On the rate MD matter, I recall that we discussed that issuing a subpoena to track the IP address was going to be too costly as it would involve briefing Californian attorneys to undertake this task. Let us know if this [sic] otherwise;

(f) an email exchange between Mr Pullen and the plaintiff between 5 and 7 September 2018, culminating in the plaintiff instructing him to locate and obtain advice from suitable attorneys in California;

(g) an email from Ms Priya Wakhlu of HWL Ebsworth to Mr Jeffrey Williams of Wargo French (a firm of attorneys in Los Angeles) dated 1 October 2018 requesting:

1. Whether your firm is able to assist in this matter and, if not, a recommendation for a firm or solicitor that can undertake the work?
2. If your firm is able to undertake the work, an estimate of costs for the following work:

1. To advise our client about her ability to compel Rate MD to disclose the IP address of the author of the post, including any risks or difficulties in making the relevant application. 2. Drawing and filing the application.

1. The likely time that it will take to identify the IP address through the relevant process;

(h) email correspondence between Ms Wakhlu and Mr Williams between 1 and 11 October 2018, where, among other things, Ms Wakhlu queried whether pre‑action discovery was available in the United States. Mr Williams responded as follows:

Without pending litigation, the pre-litigation discovery process is governed either by California Code of Civil Procedure s 2035.010 or Federal Rule of Civil Procedure 27. Unfortunately, the California statute explicitly provides that '[o]ne shall not employ the procedures of this chapter for purposes of either ascertaining the possible existence of a cause of action or a defense to it, or of identifying those who might be made parties to an action not yet filed.' The federal rule has no explicit prohibition in its text but my understanding is that it has been interpreted in a similar way by the courts. I suppose one could argue that if there is no intention to ever file suit, the exception would not apply, but suspect that a court would disagree given that the stated goal of these provisions is to 'perpetuate testimony.'

I cannot be 100% certain without performing some detailed research and obtaining additional information from the client, but as a general matter, I do not expect that we could obtain discovery without pending litigation and wanted to make sure she was aware of this potentially significant limitation before deciding whether to proceed.

(i) an email from Ms Wakhlu to the plaintiff on 14 October 2018 advising her of her options and a cost estimate for the work proposed to be done by Wargo French;

(j) an email from Ms Wakhlu to Mr Williams of 9 November 2018 telling him she had the plaintiff's instructions to proceed, and his response of the same day;

(k) copies of further correspondence between Ms Wakhlu and Mr Williams between 29 November 2018 and 5 December 2018;

(l) a copy of Wargo French's retainer emailed to the plaintiff on 5 December 2018, which was ultimately executed by the plaintiff on or about 26 March 2019;

(m) a report of Mr Williams on 15 June 2019 regarding the documents produced by RateMDs pursuant to the subpoena issued in the Californian proceeding. The report stated, among other things:

From here, probably the only way to confirm the identity of the reviewer(s) would be for your firm to subpoena the Australian based internet service providers owning these IP addresses.

This report also attached a summary of the records from the RateMDs' database, certified by its chief legal officer;

(n) a letter from HWL Ebsworth to Optus Mobile Pty Ltd ('Optus') dated 18 July 2019 seeking the identity of the customers associated with three IP addresses referred to in Wargo French's report, and Optus' response dated 26 July 2019 which confirmed that Optus required an order of the Court to provide details of the customers associated with these IP addresses;

(o) a copy of the originating motion filed by the plaintiff in this Court on 28 August 2019 seeking preliminary discovery from Telstra Corporation Ltd and Optus, and the summons on originating motion filed on 8 November 2019, along with the orders for discovery made by Derham AsJ on 3 December 2019 in response to the summons;

(p) the documents discovered by Optus on 4 December 2019, including the reference to the name and address of the defendant;

(q) the concerns notice sent by HWL Ebsworth to the defendant on 18 December 2019, seeking:

(i) a written apology and retraction of the review in terms acceptable to the plaintiff; and

(ii) reimbursement of the plaintiff's legal costs in the amount of $25,000.00; and

(r) the reply from the defendant by email dated 13 January 2020, an extract of which is at paragraph 12 (mm) above.

14 The defendant relied upon the following affidavits:

(a) an affidavit of the defendant dated 20 May 2020;

(b) an affidavit of Mr Peter Monk, a partner of Lander & Rogers, who is also a friend of the defendant and his wife, dated 20 May 2020; and

(c) an affidavit of the solicitor at Lander & Rogers with conduct of the file on behalf of the defendant, Mr Scott Traeger.

15 In his affidavit, the defendant deposed, in summary, as follows:

(a) he was served with the writ and statement of claim and Mr Pullen's affidavit of 21 February 2020 on 26 March 2020;

(b) he first became aware in general terms of the matters which are the subject of this proceeding on or around 13 January 2020, when his son (who shares his name) handed him the concerns notice. He had been overseas from 20 December 2019 to 10 January 2020;

(c) he did not post the review or permit or authorise anyone else to do so, and he responded to that effect in an email to Mr Pullen on 13 January 2020;

(d) he deposed as follows:

Since being served with proceedings I have taken various steps to gather evidence to prove that I could not have posted the review and that someone must have done so without my involvement or knowledge. However, as I explain below, due to the effluxion of time since April 2018, I am hampered in my ability to prove that neither I or my family were responsible for the review.

(e) he believes that the review was posted at approximately 11.17 pm AEST on Sunday, 1 April 2018, which was Easter Sunday;

(f) the IP address said to be related to the review was associated with an Optus internet account in the name of Fabian Ippoliti at his former home in South Yarra ('South Yarra property') (which is not presently occupied, having been extensively damaged in a storm on 14 December 2018);

(g) he exhibited various documents, which he said proved that he and his wife and children, along with some of his children's friends, were at his family's holiday home in Portsea on 1 April 2018. These records include his telephone bills, his Linkt account travel history, photographs taken and social media posts made by his wife and children, and a tax invoice from a chauffeur service used by him and his wife to travel from Portsea to Melbourne and Geelong on Monday, 2 April 2018; and

(h) he deposed as follows:

I do not know who may have posted the Review, assuming that it was indeed posted at approximately 23:17 AEST on Sunday 1 April 2018 from the IP address allocated to the internet connection at [the South Yarra property].

The Wi-Fi router we were using at [the South Yarra property] as at 1 April 2018 had been in use at that house since approximately 2007.

...

Due to the effluxion of time, I do not remember precisely who may have been staying at the South Yarra house that night (although, as I have explained, I am certain that my wife and I and our kids were not there). As mentioned above, at around that time, my children's friends Noah and Callum, together with Noah's parents, were visiting from the USA and staying with us at the South Yarra house. While Noah's parents returned to the USA on 1 April 2018, Noah and Callum remained and continued to stay with us in Australia for about six months. Callum came with us to Portsea on 1 April 2018 in my car together with Noah, and my children Tatiana and Fab Jnr. I recall, however, that Callum and his girlfriend may have been planning to stay at the South Yarra house at some point over the Easter long weekend while we were in Portsea and may have left Portsea to return to Melbourne in the evening of 1 April. But due to the effluxion of time, I cannot be definitive about whether they stayed at the South Yarra house that night.

Before the storm in December 2018, the Wi-Fi modem was located in the front room of the South Yarra house, only about 3-5m from the street. I was easily able to access the Wi-Fi from the footpath in front of the house.

The password for the Wi-Fi router at the South Yarra house has not been changed since approximately 2007. My wife, my children and I routinely give out the Wi-Fi password to guests and visitors at our house. I estimate that, by April 2018, there would have been many dozens of people to whom we had given the Wi-Fi password since the router was installed.

My wife is a gynaecologist practising in fertility treatment and, in particular, IVF. Over the years preceding April 2018, numerous people connected with IVF (such as doctors and laboratory scientists) have been to our South Yarra house. Due to the effluxion of time, I can no longer compile an exhaustive list of people connected with IVF who visited our house over the course of 2017 and early 2018, nor can I recall which of them requested the Wi-Fi password.

My wife's clinic No 1 Fertility opened on 3 April 2018 from premises at 1 Collins Street. In the weeks and months leading up to the opening, it was common for people who were either employees of No 1 Fertility or considering becoming employees of No 1 Fertility to meet with Lynn and me at our Domain Road house.

It was also common for employees of No 1 Fertility to drop items off at our house for Lynn. For example, employees would sometimes drop documents for Lynn or borrow access passes from Lynn to access No 1 Fertility over the weekend then drop them back to our house when they were finished.

16 Mr Monk deposed to being a partner with Lander & Rogers, and that he and his family are close friends of the defendant and his family, and have a holiday house nearby. He deposed that he was at his holiday home in Portsea over the Easter long weekend in 2018, and to the best of his recollection he and his wife spent the latter part of the evening on Sunday, 1 April 2018 at the defendant's house in Portsea. He deposed that 'I cannot recall what time I left, though I am still trying to find any documents or records that may assist me to confirm my movements that evening, which has been made more difficult by the fact that more than two years have now elapsed since 1 April 2018'.

(a) as to the correspondence regarding the misnaming of the defendant in the writ and statement of claim;

(b) his request for documents concerning the Californian proceeding, and the refusal of HWL Ebsworth, the plaintiff's solicitors, to provide any further documents regarding the Californian proceeding; and

(c) his investigations with the firm of chauffeurs regularly used by the defendant and his wife. He deposed that on 19 May 2020 he spoke with a driver who informed him that he had located a day book which confirmed that on 2 April 2018 he had picked up both the defendant and his wife from Portsea, dropped the defendant off in South Yarra, and then drove Dr Burmeister on to Geelong. He exhibited a copy of the driver's diary for that day, which contains a note to that effect.

18 There was no dispute between the parties as to the applicable principles, as set out in paragraphs 9 to 11 above, but rather, their application to the facts of this case. The plaintiff's submissions relied upon the chronology of events set out in paragraph 12 above to support her submission that it was unreasonable for the plaintiff to have commenced this proceeding within the one year litigation period, and therefore, the Court must extend the limitation period. Senior counsel for the plaintiff observed that the terms of s23B of the LAA presume that there may be circumstances where it will not be held to be reasonable for a plaintiff to commence a proceeding within time, and those circumstances are not confined.

19 The defendant submitted that the application should be dismissed, as the plaintiff has failed to establish that it was not reasonable for her to issue the proceeding within one year, on the basis that the plaintiff was desultory in bringing the proceeding, with several periods of unexplained or poorly explained delay totalling 56 weeks.

20 The defendant submitted as follows (citations omitted):

Brott v FGD Pty Ltd illustrates the strictness of the test. In that case, the limitation period was expiring on 19 August 2017. The plaintiff only became aware that the defendants were involved in making the defamatory publication on 25 July 2017. The plaintiff sent a concerns notice on 18 August 2017 and issued a defamation proceeding on 10 January 2018. He provided a detailed explanation for the delay, which included counsel rejecting the brief because of an unrelated dispute and the Court rejecting the initial version of the writ. It was held that the plaintiff failed to establish that it was not reasonable for him to have brought the proceeding before the expiry of the limitation period on 19 August 2017, less than four weeks after the plaintiff became aware of the identity of the defendants. The plaintiff took too long to issue the concerns notice, which could have been issued 'in the days following [25 July 2017], rather than three weeks later'. The Court also held that even if the plaintiff had succeeded on the first limb, he would have failed on the second limb because he should have issued the proceeding no later than one month after receiving the response to the concerns notice.

Mr Ippoliti acknowledges that it would not have been reasonable for Dr Knight to issue this proceeding without first identifying the defendant alleged to be the author of the Review. Mr Ippoliti also acknowledges that bringing an overseas proceeding and then a local preliminary discovery proceeding to ascertain the alleged identity of the author is an inherently timeconsuming process that could take over a year.

But that is not the end of the inquiry. The Court needs to consider the chronology of what actually occurred in this case to ascertain whether Dr Knight has acted promptly and timeously. Here, Dr Knight's own evidence reveals that she did not.

21 The defendant relied upon the following conduct of the plaintiff in support of his contention that the plaintiff has failed to establish that it was unreasonable for her to bring a proceeding within twelve months of the date she became aware of the review:

(a) after the plaintiff first sought legal advice about the review in mid-April 2018, it took nearly four months for her to instruct her solicitors to locate suitable attorneys in California in September 2018, and then a further six months to execute a retainer letter to engage Wargo French;

(b) the period between Wargo French providing the plaintiff's solicitors with details of the IP address and Optus' provision of the defendant's details was nearly six months, which the defendant submitted was an inordinately long time to prosecute an unopposed application for preliminary discovery ('preliminary discovery proceeding'); and

(c) there was a further delay of nearly three months between obtaining the information identifying the defendant and issuing this proceeding.

22 The defendant submitted that it appeared that part of the fault for the delay (said by the defendant to amount to 56 weeks of unexplained delay, even ignoring the delay in prosecuting the preliminary discovery proceeding) lay with the plaintiff herself, and part with her lawyers. However, this is immaterial to the question of whether it was unreasonable for the plaintiff to have filed this proceeding within time.

23 Senior counsel for the defendant observed that the plaintiff is not an applicant who was unaware of the relevant publication. Given she learnt of the review in early April 2018, the authorities require her to take all reasonable steps and act promptly to issue a proceeding within the limitation period. The defendant submitted that the periods of delay in the current case make the delays in Brott,[9] where I refused an application for an extension of time, seem trivial in comparison. The defendant submitted as follows:

Two consequences flow from this. First, Dr Knight fails to satisfy the first limb, that is, she fails to discharge her onus to show that it was not reasonable for her to issue the proceeding within the one-year limitation period. Secondly, even if Dr Knight satisfies the first limb, the delays above demonstrate that it became reasonable for her to issue the proceeding many months earlier than she did. This is a powerful factor that strongly militates against the Court exercising its discretion to extend the limitation period all the way to the date of commencement of this proceeding.

24 The defendant submitted that the plaintiff's delay in issuing this proceeding has prejudiced the defendant's ability to conduct his principal defence in this proceeding, being that he did not post the review or instruct or authorise anyone else to do so. While he has deposed that he was not at the South Yarra property at the time the review was posted, his ability to obtain corroborating evidence will be hampered by reason of the following (citations omitted):

1. Due to the effluxion of time, Mr Ippoliti cannot pinpoint his movements on the day as precisely as he would have otherwise been able to do. This makes it more difficult for him to locate documentary evidence that verifies his location.
2. His wife and children no longer have the phones they used in 2018.

1. While many guests were present at the Portsea house that evening and he can recall some of them, Mr Ippoliti can no longer recall everyone who was there, nor can he recall what time all of the guests arrived and left.

1. Due to the effluxion of time, he is no longer completely certain who, if anyone, was staying at the South Yarra property that night (although he is certain that he, his wife and their children were in Portsea).
2. The South Yarra property was severely damaged by a storm in December 2018 and has remained uninhabitable ever since, with works ongoing to date. As a result, Mr Ippoliti no longer has access to the Wi‑Fi router that was connected to the Optus Internet connection on 1 April 2018.
3. The Wi-Fi at the South Yarra property can be accessed from the street. The Wi-Fi password has not been changed since about 2007 and has been routinely given out to numerous guests and visitors to the house, including numerous doctors and other persons associated with IVF services. But due to the effluxion of time, Mr Ippoliti can no longer compile a comprehensive list of everyone connected with IVF who visited the house over the course of 2017 and early 2018, nor can he recall which of them were given the Wi-Fi password.

25 The defendant submitted that the prejudice to him would be compounded if, at trial, the plaintiff was to rely upon the lapse of time to undermine his evidence, and the evidence of his family members and others, regarding his whereabouts on 1 April 2018. Further, it is unclear whether the operator of the RateMDs website holds the primary records regarding the publication of the review utilised to compile its response to the subpoena issued in the Californian proceeding, and a lot may turn on whether those records are accurate.

26 Another matter said by the defendant to be relevant to the exercise of the Court's discretion to extend time (if I determined the threshold issue in the plaintiff's favour) is his contention that the Californian proceeding is an abuse of process.

27 The reasoning behind this submission is as follows:

(a) in the absence of any evidence to the contrary, Californian law is presumed to be the same as Australian law;

(b) under Australian law, it is an abuse of process to commence a proceeding for collateral purposes;

(c) the correspondence between HWL Ebsworth and Wargo French exhibited to Mr Pullen's affidavit demonstrates that the Californian proceeding was commenced for the purpose of circumventing the prohibition on pre‑action discovery in California, rather than to vindicate the plaintiff's rights;

(d) I can infer from the refusal of HWL Ebsworth to produce the court documents in the Californian proceeding that the plaintiff's claim in the Californian proceeding was a claim in defamation, brought for the sole purpose of having on foot a proceeding in which a subpoena could be issued, which is a clear abuse of process; and

(e) further, if the Californian proceeding brought claims in defamation, with an unknown defendant, 'John Doe', then s 23 of the Defamation Act would be enlivened. As the plaintiff has failed to apply to this Court to bring an application under s 23 of the Defamation Act, it would be futile to grant leave under s 23B of the LAA.

28 In conclusion, the defendant submitted as follows:

The lengthy unexplained and poorly explained delays in bringing this proceeding mean that Dr Knight failed to show that it was unreasonable for her to bring this proceeding within the one-year limitation period.

In any event, it became reasonable for her to issue the proceeding many months before she actually did so. Her unreasonable delay has substantially prejudiced Mr Ippoliti in being able to conduct his defence. Further, a substantial component of the delay was caused by the Californian Proceeding that was an abuse of process. Dr Knight should not be able to rely on that proceeding to justify the associated delay. Finally, it would be futile to extend the limitation period because the proceeding is barred by s 23 of the Defamation Act. In these circumstances, the Court's discretion under the second limb should be exercised against extending the limitation period all the way to the date of commencement of the proceeding.

29 The plaintiff's submissions in reply addressed the following matters relied upon by the defendant in his submissions in opposition to the plaintiff's application for an extension of time, being:

(a) the defendant's contention that granting an extension of time would be futile because the bringing of this proceeding is barred by s 23 of the Defamation Act;

(b) the alleged prejudice of the defendant's ability to defend the proceeding by reason of the plaintiff's delay;

(c) the extent of unexplained delay on the part of the plaintiff in bringing the proceeding; and

(d) the defendant's allegation that the Californian proceeding was an abuse of process.

30 The plaintiff submitted that the defendant's submissions that s 23 of the Defamation Act has been enlivened are improper, and should not have been made. The plaintiff agreed that the purpose of the Californian proceeding was to obtain the IP address of the author of the review. However, the Californian proceeding was not brought against the defendant, but rather an unknown defendant, described as 'John Doe', a different person.

31 The plaintiff described the defendant's submissions to the effect that he has been prejudiced in his conduct of his defence by reason of the plaintiff's delay as 'ludicrous', in particular, the defendant's suggestion that he is prejudiced by not being able to pinpoint his movements on 1 April 2018. Many witnesses give evidence at trials about events which occurred in the past, often with faded memories.

32 The plaintiff submitted that the defendant's submission that the unexplained delay on the plaintiff's part amounted to 56 weeks is without foundation. Rather, the unexplained period of delay on the plaintiff's part was just short of sixteen weeks, or less than four months. The plaintiff submitted as follows:

Given that it took almost 15 months (ie from 7 September 2018 to 3 December 2019 - see plaintiff's Outline of Argument [12]) from the time Dr Knight instructed HWLE to find suitable lawyers in the United States to obtain the IP address of the April Review from RateMDs to the conclusion of the legal processes in the United States and Australia to identify the IP address and the holder of the Optus internet account, it was not reasonable for Dr Knight to issue this proceeding within the 1 year limitation period.

33 The plaintiff's submissions then dealt in some detail regarding the specific periods of delay identified by the defendant in his submissions, concluding: "These alleged delays, if they are delays, are on the part of Dr Knight's lawyers, not her."

34 Finally, in relation to the defendant's submissions that the Californian proceeding was an abuse of process, the plaintiff submitted that there is no admissible evidence of Californian law before me, and, as such, there is no evidence that the Californian proceeding was an abuse of process.

35 The basic principle which must be kept in mind in applications of the current kind is that a reasonable person in the position of the plaintiff, with knowledge of a defamatory publication, is expected to take prompt steps to investigate the publication, and to proceed to take action if there are grounds for doing so.[10] For the purpose of determining whether it was not reasonable for the plaintiff to issue this proceeding within the limitation period, the period between April 2018 and February 2020 can be disaggregated into four discrete phases:

(a) the period between the plaintiff's discovery of the review and its removal from the RateMDs website (April-May 2018, being two months);

(b) the period during which the plaintiff sought legal advice regarding steps which could be taken to identify the author of the review and gave instructions to undertake those steps, in particular, the retention of US lawyers, and the issue and prosecution of the Californian proceeding (June 2018 to June 2019, being twelve months);

(c) the process of obtaining details of the ownership of the IP address of the author of the review through the preliminary discovery process (July 2019 to December 2019, being five months); and

(d) the period between identifying the defendant and issuing this proceeding (December 2019 to February 2020, being three months).

36 Ignoring the limitation period for the moment, comparing the above time frames with what would be a reasonable period of time to complete these steps, based upon the evidence of how long these steps actually took to complete once under way, and a general understanding of what occurs in the course of litigation, it seems to me that an acceptable period of time to complete the above steps would be as follows:

(a) the period of time taken by the plaintiff to seek legal advice and the removal of the review from the RateMDs website (two months) was reasonable;

(b) noting that once the plaintiff executed the Wargo French's retainer letter, the IP address of the defendant was obtained in less than three months, an acceptable period of time for the plaintiff to locate and retain Californian lawyers, obtain and consider advice regarding her options, and provide the necessary instructions would be five months, perhaps, being generous, six months;

(c) given the period of time between the plaintiff's issue of the summons in the preliminary discovery proceeding and the date the orders were made for preliminary discovery was approximately four weeks, an acceptable period of time to complete the preliminary discovery process would be two months; and

(d) given that it is not necessary for a party to serve a concerns notice prior to issuing a proceeding,[11] a reasonable period of time between the time the plaintiff discovered the identity of the defendant and the date the proceeding was issued would be one month (given the statement of claim is not complex), perhaps two months given the time of year. While the Defamation Act promotes non‑litigious resolution of disputes through the use of concerns notices, given the limitation period had expired by the time the plaintiff served the concerns notice, it is not appropriate to make an allowance for this to take place for the purposes of the current application.

37 Accordingly, assuming a reasonably diligent and cautious plaintiff, having regard to the steps that the plaintiff needed to take before issuing this proceeding, and taking a reasonably generous view of the amount of time required to complete the various steps outlined above, it could not be said, absent any other reasonable explanation for delay, that it was unreasonable for the plaintiff to commence the proceeding within twelve months of the publication of the review.

38 The question remains: does the evidence establish that, by reason of the plaintiff's own circumstances, or the particular circumstances of the case, it was not reasonable to have required the plaintiff to complete the steps outlined above and issue the proceeding within the twelve month time limit?

39 It is not necessary for present purposes to exhaustively recount all of the evidence in addition to the chronology set out at paragraph 12 above. I accept that a reasonably generous allowance needs to be made for the need for the plaintiff to investigate and consider her options when faced with an anonymous review on a website hosted outside Australia, and before taking the serious step of issuing a proceeding in this Court. However, a substantial part of the delay in taking these steps, in particular, the delay between 14 October 2018 (when Ms Wakhlu informed the plaintiff of what was required to pursue the matter) and the execution of Wargo French's retainer letter on 26 March 2019 (a period of more than five months) is unexplained, in circumstances where, at the time the executed retainer letter was forwarded to Wargo French, the limitations period had, at most, only two more months to run.

40 Equally baffling is the delay between HWL Ebsworth's receipt of the report from Wargo French containing the defendant's IP address on 15 June 2019, and the issue of the summons seeking preliminary discovery from Optus and Telstra on 8 November 2019, a period of nearly five months, when the limitation period had already expired. The plaintiff and her lawyers must have known that, at the time the report from Wargo French was provided to HWL Ebsworth, while it was open to the plaintiff to make an application under s 23B of the LAA once she commenced a proceeding, the limitation period was a difficult hurdle to overcome.[12] In those circumstances, it was incumbent upon the plaintiff and her lawyers to proceed with some degree of expedition from the time they received the report from Wargo French. Instead, they took a further two months or so to issue the preliminary discovery proceeding, and let it languish for a further two months or more prior to issuing the summons for judgment, in circumstances where the application was unlikely to, and in fact did not meet any resistance from Telstra and Optus. No explanation whatsoever has been provided for this delay.

41 The only evidence directed at explaining the delays in issuing the proceeding (in addition to the understandable and acceptable delay occasioned by the need to issue the Californian proceeding), while not expressed as such, seems to have been put forward in support of the contention that the plaintiff, as a busy medical professional, who regularly attended international conferences, was somehow hampered by her duties and responsibilities from doing what was necessary to seek advice and give instructions to progress the matter. Further, it was submitted that periods during which she was on annual leave should not be counted against her.

42 If that evidence and those submissions is directed at excusing delay on the part of the plaintiff as she was a busy professional person, who was entitled not to have her professional commitments and well-earned holidays interrupted by the need to deal with legal matters, then such a proposition is untenable. The legislature has long imposed strict limitation periods for the bringing of civil proceedings (no more so than in the field of defamation), and equally strict regimes governing when those limitation periods may be extended or dispensed with. In a judgment delivered while the decision in this application was reserved, Cossari v Wells,[13] the Court of Appeal noted the legislative intention behind s 5(1AAA) of the LAA as being the need for defamation cases to be tried with expedition.[14]

43 Further, to the extent that a plaintiff's personal attributes or circumstances are relevant to the question of whether an extension of time ought to be granted, they tend to be disabling attributes or disadvantageous circumstances,[15] not the time pressures which flow from having a busy professional career. The position of the current case is to be contrasted with the position of the applicant in Davies v Nilsen,[16] who sought an extension of time to bring a claim for personal injuries many years outside the limitations period. While he regarded the applicant's conduct as 'unsatisfactory', J Forrest J granted an extension of time, stating:

However, it is often easy for lawyers (and judges) to fall into the trap of evaluating a lay persons actions through an adversarial legal prism. Ms Davies was a young woman with no legal training and, in particular, no knowledge of the intricacies of tort law and the statutory modifications in this state. On her account, she had not been told anything about limitation provisions or common law claims. Whilst a more prudent person may have sought a second opinion, I do not regard her lack of action in this period as fatal. I take a similar view of the delay in consulting Clark and Toop after receiving the advice of Dr Pastore.[17]

44 Here, the plaintiff is a well-educated and no doubt successful professional, and she sought legal advice soon after becoming aware of the publication. There is no evidence to the effect that the plaintiff was not advised of the relevant limitation period, or was not aware of the limitation period. Indeed, I can infer from the absence of evidence to that effect (along with the fact that Mr Pullen is a well‑known and experienced practitioner in this field), that she did receive advice concerning the limitation period.

45 Further, the submission that "defamation plaintiffs are entitled to a holiday", in the face of a strict limitation period, is, with respect, completely unpersuasive.

46 Otherwise, there is no other evidence which provides any cogent explanation for the plaintiff's delay. While there was an indication that the plaintiff was seeking financial assistance from Virtus Health Ltd, the operator of the fertility clinic to which the plaintiff provides clinical services, there is no evidence that the plaintiff could not have pursued the Californian proceeding using her own resources. Accordingly, I do not consider that it was unreasonable for the plaintiff to have not issued this proceeding within the twelve month limitation period.

47 However, in any event, even if the timeframes referred to in paragraph 36 above are considered to be unduly restrictive, and it was unreasonable for the plaintiff to be required to have issued the proceeding within the limitation period, I would not have exercised my discretion to extend the limitation period to the date of the issue of the proceeding, being 21 February 2020. Even if one considers the delays in locating and seeking advice from the plaintiff's US lawyers to be reasonable, Wargo French forwarded its retainer letter to HWL Ebsworth on 5 December 2018, after HWL Ebsworth had informed them on 9 November 2018 that it had instructions from the plaintiff to proceed with the Californian proceeding.

48 If the plaintiff had executed and returned the retainer letter at that time, it would be expected that, taking into account the short Christmas/New Year break in the United States, the Californian proceeding would have been finalised in March or April 2019. Then, making an allowance for the proceeding for the preliminary discovery proceeding being finalised within a reasonable period of time, a period of time for the preparation and issue of a concerns notice, and a period of time for drawing and settling a statement of claim (which, I note, runs to only eight paragraphs, and concerns only one publication), the latest date by which it would have been reasonable to extend the limitations period to, being generous to the plaintiff, would be 31 August 2019. That date is nearly six months prior to the date of the issue of this proceeding.

49 There is a (faint) suggestion that part of the responsibility for delay rests with the plaintiff's lawyers, not the plaintiff herself. However, even if that were a relevant consideration (which I doubt), there is no evidence one way or another as to where responsibility should lie for the lengthy delay in bringing proceedings or any part of that delay. It is not clear from Mr Pullen's evidence whether the delay was caused by any dereliction of duty in his office, or by reason of the plaintiff failing to give timely instructions, or to put his firm in funds.

50 Turning now to the other matters raised by the defendant in his submissions, I accept that while there is some prejudice to the defendant occasioned by the delay, that prejudice has been somewhat overstated, and would not, of itself, be reason to refuse the application, if there had been a reasonable explanation for the delay given by the plaintiff. I doubt there will be any great difficulty in the plaintiff's family members and others in attendance at his home in Portsea on 1 April 2018 being able to reconstruct their movements from telephone and social media records, and the defendant's contention that the primary records of the operator of the RateMDs website may no longer be accessible is mere speculation. In any event, witnesses in trials in this state give evidence about events where the gap between the event and the trial is far greater than the three years which might elapse between the date of publication and the likely date for the trial of this proceeding.

51 As for the submission that the plaintiff requires leave to issue this proceeding by reason of the terms of s 23 of the Defamation Act, and thus this application is futile, it seems to me that, in the absence of the court documents in the Californian proceeding, and better evidence regarding Californian law, it is not possible to resolve that issue. If I had granted the plaintiff's application for an extension of time, it would have been open for the defendant to apply to stay the proceeding on the grounds that no leave had been sought under s 23 of the Defamation Act, and the issue would need to be determined on its merits when the parties and the Court were in possession of all of the relevant facts and documents. These observations also apply to the defendant's contention that the Californian proceeding was an abuse of process, which might be a relevant discretionary matter when determining whether to grant leave pursuant to s 23 of the Defamation Act.

52 Accordingly, I will dismiss the plaintiff's application for an extension of time under s 23B of the LAA. While the defendant has not yet formally done so, I expect that the next step for the defendant is to move for judgment under s 63 of the Civil Procedure Act 2010 (Vic).

[1] Mr Ippoliti filed a conditional appearance, on the basis that his real name is Fabrizio, not Fabian. I do not understand why the dispute over Mr Ippoliti's first name has not been able to be resolved by the parties prior to the hearing of this application, given the evidence that Mr Ippoliti's first name is indeed Fabrizio.

[2] See Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575.

[3] [2013] VSC 251.

[5] [2018] VSC 182.

[6] [2013] VSC 251.

[7] [2018] VSC 182 [13].

[8] McMahon v Watkinson [2014] VSC 123 [48].

[9] [2018] VSC 182.

[10] Wookey v Quigley (No 2) [2010] WASC 209.

[12] Coincidentally, the decision in Brott, in which the plaintiff sought an extension of four months, was delivered on 24 April 2018, and would have been published shortly thereafter, about a fortnight after the plaintiff first sought legal advice regarding the publication of the review, and about a month before the plaintiff sought advice from Mr Pullen about what steps would be required to identify the author of the review.

[13] [2020] VSCA 133.

[15] See Hunt v Numurkah District Health Service [2018] VSCA 248 [58], where the Court of Appeal held that the personal characteristics, knowledge and background of the applicant in question were held to be relevant to whether an extension of time to bring a proceeding.

[16] [2015] VSC 584.