Teh v Woodworth & Anor

Teh v Woodworth & Anor - [2022] NSWDC 411 - NSWDC 2022 case summary — Zoe

[3]

The matters complained of

The text of "Letter A" is as follows: "27 August 2019 Attn: Officer: Kai McRae Blue Mountains City Council 2 Civic Place Katoomba NSW 2780 Re: Proposed Development Application DA X/643/2019 56 Wentworth St Blackheath We, the undersigned, have reviewed the above-reference DA and have several objections to the proposal, particularly regarding the applicant's assertion in Statement of Environmental Effects. The applicant assets that the streetscape of Wentworth St contains no defined streetscape/character and has no building of architectural merit. We submit this opinion is entirely subjective and that the construction of a large two story pavilion at the back of the existing cottage would be detrimental to the street scape and certainly not in keeping with the character of the area. The houses in the surrounding area are designed with minimal visual impact and are generally surrounded by generous sized, garden blocks. The proposed extension pavilion, being two storeys high, will be very noticeable from our south facing windows. The materials listed as part of the construction are Core Ten panels (rust), glass panels and concrete - most unattractive and more suited to a factory site building than a house on a quiet residential street. The pavilion itself is, in our opinion bizarre in its design. It resembles several containers being joined together and stuck on the back of the existing cottage. The floor plan shows that the pavilion will take up nearly all the available land space on the block leaving little, if any room for landscaping. The applicant has landscaped the front of the block and Council's nature strip. While the planting is attractive, the applicant has strung lights amongst all the trees which flash red, which or green depending on his choice. Flashing lights in trees indicate to us the applicant has no idea what is suitable to the village of Blackheath and indeed, we have heard several locals make the comment that 56 Wentworth St at night looks more like Kings Cross than Blackheath. We can't see where he proposes landscaping on the development as the pavilion extension appear to take up nearly all the available land on this block. The applicant has previously demonstrated his disdain for the natural environment by removing twenty 15 metre high conifers which were growing on the boundary between our property and the two additional blocks he owns namely Lots 52 and 54 Wentworth St. We purchased our property because of the privacy it afforded us. Due to the removal of the trees, without even notifying or discussing it with us beforehand, our privacy has been lost. In addition, because the applicant would do nothing about the state of Lots 52 and 54 Wentworth St which were infested with blackberry and poplars, we had to lodge a complaint with the Council in order to get him to rectify the situation. In summary: We submit that if the applicant's proposed development is allowed, the back two blocks are likely to have similar construction/ designs predicated on the applicant's design for the current DA. Such construction would not only look out of place in our suburb but would directly overlook us thereby infiltrating upon our already reduced privacy."
The text of "Letter B" is as follows: "20 February 2020 Attn: Robert Walker Environmental health and Building Surveyor Blue Mountains City Council Locked Bag 1005 Katoomba NSW 2780 Re: Proposed Development Application X/13/2020 54 Wentworth Street Blackheath WE, the undersigned have viewed the above-reference DA and have several objections to the proposal, particularly in regard to the application's assertion in the Statement of Environmental Effects. The Proposed DA completely reduces our privacy. The applicant assets that the proposed new dwelling will be obscured by the dwelling and trees at 56 Wentworth St. The applicant does not take into account that the proposed dwelling will be very close to our common boundary with 54 Wentworth Street. There is absolutely no vegetation on this block as the applicant previously cur down a row of 20x15 metre high conifers which afforded us privacy on the common boundary. He did this with no warning or consultation with us, his neighbours. We bought our house 6 years ago because of the privacy it afforded us. The applicant has completely destroyed the privacy we used to enjoy on that boundary and this will be further affected by the proposed building. The applicant maintains our property is two storeys and that we have entry hall and living areas on the lower level. This is incorrect. We have parking and storage on the lower level, above which our one storey house sits. In addition, our house has been constructed by excavating into the block so that it doesn't exceed any height limitations. The proposed DA on 54 Wentworth St appears to be three steel container like constructions which, being two storeys, will exceed the height limit. We absolutely object to this. The applicant maintains that surrounding properties are constructed on much higher land than 54 Wentworth Street. Our block is not higher than 54 Wentworth St and as mentioned above, our house has been built by excavating into the land. A construction of mostly steel is absolutely not in keeping with the character of surrounding properties and Blackheath itself. The design is particularly ugly and intrusive - not as the applicant asserts, "distinctive cutting edge contemporary architectural design". It will certainly not, in our opinion enhance the streetscape and locality. It will look like someone has dumped 3 shipping containers with chimneys on the block. We have viewed the proposed planting for 54 Wentworth St and note there is no planting whatsoever planned for our common boundary as far as we can tell. Again, we object to this. Although the applicant has planted trees and shrubs in the front of 56 Wentworth St this will have no effect whatsoever on our privacy on the common boundary. The applicant has previously demonstrated his neglect of the two block, 52 and 54 Wentworth St as they were infested with poplars and blackberry. This was only partially rectified after we had to lodge a formal complaint with BMCC. We have also previously drawn Council's attention to many permanent lights the applicant has strung between the trees or stuck in the ground under the trees he has planted in front of 56 Wentworth St. These lights are not Christmas lights - he has them flashing most evenings. They flash either red or green lights which makes the street look like Kings Cross, not Blackheath. Many people we know have commented negatively about this intrusion as these lights are not in keeping with our neighbourhood. We note the shade diagram which purports to show no dwellings will be affected by shadows from the new construction have been are taken from Google Earth and are dated Midwinter only. The summer shadows will be on a completely different trajectory - this has not been taken into account. To sum up, we object entirely to the applicant's proposals for both 54 and 56 Wentworth Street. There is nothing in his proposal that is in keeping with Blackheath village and construction of these dwellings will, in our opinion appear bizarre and will not approve the look of the street whatsoever."
Neither of these publications identify the plaintiff by name; in fact, they refer to "the applicant". The plaintiff, in his particulars of identification, says he is identifiable to persons knowing his role of architect and project manager but provides no particulars of names or addresses (paragraphs 14 and 17 of the statement of claim) of persons who knew this information.
The plaintiff has set out a series of imputations he claims arise from each publication. These imputations are interlarded with comments he makes about the falsity of the allegations which makes the text difficult to follow, so I have not reproduced them. They are, however, more or less as set out in the concerns notice.

[4]

Publication of the matters complained of

Each of these letters is asserted to have been published as follows: 1. Letter A was published to Council on 27 August 2019 (Publication A1). 2. Letter A was published on 27 July 2020 to the Local Planning Panel ("LPP") on 27 July 2020 (Publication A2). 3. Letter A was published on 16 June 2022 "to public" [sic]. 4. Letter A was published "on other occasions unknown to the plaintiff" (Publication AX). 5. Letter A was "available to the public over the counter by request at any time" and "available to the public by email at any time" (The plaintiff acknowledged in oral submissions that this is not correct). 6. Letter B was published to Council on 20 February 2020 (Publication B1). 7. Letter B was published to the LPP on 27 July 2020 (Publication B2). 8. Letter B was published "to public" [sic] (Publication B3). 9. Letter B was similarly published on other occasions unknown to the plaintiff" (Publication AX) as well as "over the counter" and by email "at any time" (although the latter claim is now withdrawn). 10. No dates are given for the defendants' asserted campaign of slander except that it has been going on "since 2013" and that Letter A and Letter B are part of that campaign. Apart from the references to Letter A and Letter B, none of the texts of these slanders have been provided.
The statement of claim provides "particulars of harm" at paragraphs 34 - 39 and particulars of damage at paragraphs 40 - 43, which include loss of his commission, loss of work, being the subject of a campaign of harassment and intimidation since 2015. None of this information was put in the concerns notice, the text of which is set out below. All of it predates the publication made on 16 June 2022; the threat of physical violence by the first defendant on 19 June 2022 (at paragraphs 40 - 43) appears to relate to the circumstances in which the concerns notice was served.
The plaintiff acknowledges that he received copies of all of the objections, including those of these two defendants, from a time shortly after each was published, which he was prepared to agree was May 2020. The names of the objectors had been redacted but he agreed in oral submissions that, as a person living in the area since 2015, he had had little difficulty in finding out who the defendants were. An application for pre-action discovery of the kind deplored by Bromwich J in Do v Kolsumdet Pty Ltd [2022] FCA 1057 at [10] was therefore never necessary.
Since proceedings were not commenced until 21 July 2022, only publications since 21 July 2021 would fall outside the requirement to commence proceedings within one year of publication. I will set out the issues relevant to the 2021-2022 publications before determining the application to extend time.

[6]

What do the Concerns Notices say?

The concerns notice sent to the first defendant on 19 June 2022 stated as follows: ""This letter serves as a Concerns Notice ("Notice") under the Defamation Act ("Act"), 2005, NSW. This notice relates to the verbal remarks you have made, and the following letters you sent to the Blue Mountains City Council ("Council") in relation to the development applications (DA) for 56 and 54 Wentworth St, Blackheath, NSW 2785, also described as X/643/2019 and X/13/2020 respectively: 1. Letter dated 27 August 2019, re: X/643/2019 (Letter "A" - attached); 2. Letter dated 20 February 2020, re: X/13/2020 (Letter "B" - attached). These letters, ostensibly "planning submissions", are available from Council upon request and refer to me as the "applicant" for the DAs. I am identified in the DA documents to which your letters refer. Alternatively, I may be readily identified as the owner/designer/developer because of the fact that I live in 56 Wentworth St and am perceived to be associated with these properties. You made the following statements which I believe fall outside the scope of the privilege to which you were afforded: Letter A • "…the applicant has strung flashing lights amongst all the trees…" This is a falsehood. The lights do not flash, and there are no lights strung between the trees. Imputations: a. The applicant strings undesirable/ugly/objectionable flashing lights between trees. • "Flashing lights in trees indicate to us the applicant has no idea what is suitable to the village of Blackheath…" This is a falsehood for the reasons described above. Imputations: a. The applicant is an architect/designer who has put up ugly flashing lights up in the trees that are in bad taste because they flash. b. The applicant is an architect/designer who puts up flashing lights strung up between the trees because he has no idea of how to design buildings for Blackheath. c. The applicant is an architect/designer/developer who has no idea how to design buildings in Blackheath. • "The applicant has previously demonstrated his disdain for the natural environment by removing twenty 15 metre high conifers…" The conifers were removed by the owner of the properties Red Packet Investments Pty Ltd (and not the applicant) in response to the requirement by Council that the area is designated an Inner Protection Area (IPA) and to prevent fire spread. It is particularly egregious that you would make this a part of your "planning" submission to Council when I explained to Mr Woodworth - when he came rapping aggressively on my door sometime in January 2017 demanding to know why we were "removing my [Mr Woodworth's] windbreak…" - that the property was zoned IPA and the owner was concerned about fire spreading from the fuel load on Wentworth St to the back lots (near the Great Western Highway). I also explained that we did not require any approval to remove 100% of the trees if we wanted to do so. Imputations: a. The applicant is an architect/designer/developer who has no care or respect for the environment. b. The applicant is an architect/designer/developer who will design buildings without any consideration for, or impact to, the environment. c. The applicant is an architect/designer/developer who designs and constructs buildings that are detrimental to the environment. d. The applicant should not be engaged as an architect/designer/developer because he does not care for the environment. e. The applicant is an architect/designer/developer who removes trees and vegetation without cause. f. The applicant is an architect/designer/developer who removes trees and vegetation without permit. Letter B A. "The design is particularly ugly and intrusive…" The authors of this letter are not qualified to interpret architectural plans. Imputations: a. The applicant is an architect/designer/developer who designs ugly buildings. b. The applicant is an architect/designer/developer who designs intrusive buildings. c. The applicant is an architect/designer/developer who designs ugly and intrusive buildings. B. "It will look like someone has dumped 3 shipping containers with chimneys on the block." Imputations: a. The applicant is an architect/designer/developer who designs buildings that look like shipping containers with chimneys. b. The applicant is an architect/designer/developer who designs buildings that appear to be dumped onto the site. C. "The applicant has previously demonstrated his neglect of the two blocks, 52 and 54 Wentworth St as they were infested with poplars and blackberry. This was only partially rectified after we had to lodge a formal complaint with BMCC." The property was infested before purchase. After taking custody of the site, the owner and I have spent time and money removing weeds and improving the land. It also appears you have made more than one complaint - we received numerous visits from Council Officers over the years. The owner considers these visits the result of a deliberate intent to harass the owner/occupant of the property under the cloak of anonymity, and a form of intimidation. As do I. Imputations: a. The applicant is an architect/designer/developer who neglects his property/developments. b. The applicant deliberately allows weeds to spread. c. The applicant is a neglectful person. D. "We have also previously drawn Council's attention to the many permanent lights the applicant has strung between the trees or stuck in the ground under the trees he has planted in front of 56 Wentworth St. These lights are not Christmas lights - he has them flashing most evenings. They flash either red or green lights which makes the trees look like Kings Cross, not Blackheath. Many people we know have commented negatively about this intrusion…" Imputations This is a falsehood, and the imputations are already described in Letter A, (A) and (B) above. E. "We note the shade diagram which purports to show no dwellings will be affected by shadows from the new construction have been are taken from Google Earth and are dated Midwinter only. The summer shadows will be on a completely different trajectory - this has not been taken into account." This is a falsehood because: - Councils require only mid-winter (winter solstice) shadow diagrams because they show the shadows at their longest. - Midsummer shadow diagrams are not required because shadows are at their shortest and therefore have the least - or possibly no - impact on surrounding properties. - DA documents are not released/advertised to the public or notified to neighbours unless ALL submission requirements (i.e. necessary documents provided) are met. Imputations: a. The applicant is an incompetent architect/designer/developer because he has failed to provide the proper and necessary documentation for Council and the public to assess the design and its shadow impact. b. The applicant is incompetent because he has not taken all considerations into account in his designs and is a bad architect/designer. c. The applicant sought to mislead Council and the public by showing only the shadow impacts during mid-winter. d. The applicant sought to mislead Council and the public by not providing shadow diagrams for midsummer. e. The applicant cannot be trusted to perform his duty as an architect/designer to provide the information required by Council and those affected by his DAs because he deliberately withholds critical documents/diagrams. f. The applicant tried to deceive Council and the public. Slander In addition to the written imputations, your letters refer to negative verbal remarks and/or comments you have made or invited, and continue to make and invite, to and other people about me and my professional work that may be interpreted as slanderous. Improper Motives, Deep Offence & Serious Harm Caused In spite of Council's cautions in their letters to you, Council's published website policies, and the legislation governing public participation in DAs, to not include complaints of a personal nature or of civil disputes, you have made a number of false statements in your letters, statements that are of a personal nature and that fall outside of "planning principles", and that are defamatory. You have done so in the full knowledge that they are publicly available, and your actions have been actuated by a reckless indifference to the truth, personal animosity towards me and malice. You have caused and are likely to continue to cause further serious harm to me. Amends I require that you provide an offer to make amends in accordance with Section 14 of the Act. I also draw your attention to Section 15 of the Act which sets out certain requirements in relation to the contents and form of an offer to make amends. Without prejudice to any of my future rights in relation to this matter, I also require the following in addition to the above: • a legally binding and permanent undertaking to stop defaming me or my professional work in future; and • reasonable monetary compensation that is commensurate with the offence and harm caused. If I do not receive a satisfactory response from you within the legislated time, I will lodge a statement of claim for damages against you without further notice to you. My claim will include aggravated damages and the costs of pursuing litigation for a full trial. Yours sincerely Steven Teh""
The concerns notice to the second defendant is in the same terms.

[7]

The statutory requirements for service of a concerns notice

Section 12A provides: "12A Concerns notices (1) For the purpose of this Act, a notice is a "concerns notice" if-- (a) the notice-- (i) is in writing, and (ii) specifies the location where the matter in question can be accessed (for example, a webpage address), and (iii) informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (the "imputations of concern" ), and (iv) informs the publisher of the harm that the person considers to be serious harm to the person's reputation caused, or likely to be caused, by the publication of the matter in question, and (v) for an aggrieved person that is an excluded corporation--also informs the publisher of the financial loss that the corporation considers to be serious financial loss caused, or likely to be caused, by the publication of the matter in question, and (b) a copy of the matter in question is, if practicable, provided to the publisher together with the notice. Note : Section 12B requires a concerns notice to be given before proceedings for defamation can be commenced. (2) For the avoidance of doubt, a document that is required to be filed or lodged to commence defamation proceedings cannot be used as a concerns notice. (3) If a concerns notice fails to particularise adequately any of the information required by subsection (1)(a)(ii), (iii), (iv) or (v), the publisher may give the aggrieved person a written notice (a "further particulars notice" ) requesting that the aggrieved person provide reasonable further particulars as specified in the further particulars notice about the information concerned. (4) An aggrieved person to whom a further particulars notice is given must provide the reasonable further particulars specified in the notice within 14 days (or any further period agreed by the publisher and aggrieved person) after being given the notice. (5) An aggrieved person who fails to provide the reasonable further particulars specified in a further particulars notice within the applicable period is taken not to have given the publisher a concerns notice for the purposes of this section."
Section 12B provides: "12B Defamation proceedings cannot be commenced without concerns notice (1) An aggrieved person cannot commence defamation proceedings unless - (a) the person has given the proposed defendant a concerns notice in respect of the matter concerned, and (b) the imputations to be relied on by the person in the proposed proceedings were particularised in the concerns notice, and (c) the applicable period for an offer to make amends has elapsed. (2) Subsection (1)(b) does not prevent reliance on - (a) some, but not all, of the imputations particularised in a concerns notice, or (b) imputations that are substantially the same as those particularised in a concerns notice. (3) The court may grant leave for proceedings to be commenced despite non-compliance with subsection (1)(c), but only if the proposed plaintiff satisfies the court - (a) the commencement of proceedings after the end of the applicable period for an offer to make amends contravenes the limitation law, or (b) it is just and reasonable to grant leave. (4) The commencement of proceedings contravenes the limitation law for the purposes of subsection (3)(a) if the proceedings could not be commenced after the end of the applicable period for an offer to make amends because the court will have ceased to have power to extend the limitation period. (5) In this section - limitation law means the Limitation Act 1969."

[8]

Defects in the concerns notices

The first and most significant defect is self-evident: no publication on 16 June 2022 is identified. The only two publications identified are those of 27 August 2019 and 20 February 2020. The lack of any reference to any publication made on 16 June 2022 was acknowledged by the plaintiff.
Second, it is no answer to say that concerns notices were sent for other publications in the same form as the 16 June 2022 publication; bringing proceedings for one publication does not encompass all past and future publications, no matter how similar they may be.
There is a further complication in that liability for the earlier publications must be determined according to the repealed legislation. Contrary to the transition provisions in the uniform legislation as it was in force prior to 1 July 2021, there is no provision in the 1 July 2021 amendments for a series of publications made both before and after 1 July 2021 to be considered as if they had all been made before that date (a situation which has drawn some criticism in view of its asserted technicality: see Barilaro v Shanks-Marcovina (No 3) [2021] FCA 1100). Nor is it the case, as the plaintiff appears to claim, that the amendments to the legislation which takes force from 1 July 2021 mean that publications prior to that date are all considered under the new legislation (the plaintiff's reference to serious harm in the concerns notice appears to arise from his belief that all claims must now establish serious harm). The issue of serious harm will arise only in relation to publications made after 1 July 2021, and the defendants are entitled to receive a concerns notice identifying not only the publication asserted to have been made on 16 June 2022 (including to whom it was published) but also the serious harm asserted to be flowing from this 16 June 2022 publication, as opposed to other, earlier publications for which serious harm is not an element.
The result is that no concerns notice identifying the asserted publication of 16 June 2022, or any other publication on a date after 1 July 2021, has been served.
Commencement of defamation proceedings for a publication made after 1 July 2021 without first serving a concerns notice is impermissible: s 12B(1). It is not possible for the plaintiff to cure this defect by serving a concerns notice now and making an application nunc pro tunc. Nor does service of a concerns notice for other publications suffice. The whole purpose of concerns notices for publications made after 1 July 2021 is to ensure that one has been provided for each allegedly defamatory publication before court proceedings are commenced, hence the mandatory nature of the language of s 12B(1) ("cannot commence defamation proceedings unless…a concerns notice in respect of the matter concerned" [emphasis added]).
Section 12B(1) is a "mandatory" provision. Non-compliance with the requirement for service of a concerns notice for the specific publication sued on invalidates the proceedings commenced in spite of it. It is not a "directory" provision which does not have such fatal consequences (although generally there should be substantial compliance: Clayton v Heffron (1960) 105 CLR 214 at 247 per Dixon CJ, McTiernan, Taylor and Windeyer JJ; see also Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 248-250). It is mandatory in nature.
The second defect in the concerns notice is the failure to provide particulars of the "serious harm" to the person's reputation caused, or likely to be caused. (This would, however, only be relevant if the concerns notice actually referred to a publication made after 1 July 2021, the date on which the amendments including serious harm came into force, which I have found it does not). Once again, this is a mandatory, and not a directory, requirement for the concerns notice to be valid.
The plaintiff is clearly aware of the concept of serious harm, but all that he says about harm in the concerns notice is: "You have caused and are likely to continue to cause further serious harm to me."
This bald reference to "serious harm" is all that is provided. There is no heading of "Particulars of serious harm", no set of particulars of what that harm may be and no material indicating the causation between the publication on 16 June 2022 and the serious harm.
The obligation to provide clear particulars of serious harm has been explained by Sackar J in Newman v Whittington [2022] NSWSC 249 at [30] - [46], where his Honour struck out particulars of serious harm in a statement of claim while granting leave to amend. No such right to amend is possible here, firstly because the failure to provide such particulars in a concerns notice results in the concerns notice not being valid, and secondly because, unlike the particulars provided in Newman v Whittington, no particulars have been provided at all.
While English authorities must be viewed with some caution, for the reasons explained by Sackar J in Newman v Whittington in his Honour's discussion of the use of Lachaux v Independent Print Ltd and another [2020] AC 612 at [48] - [50], the necessity to go beyond "a bare assertion" of serious harm has been described as being "not a technicality which can be overcome by further amendment" (Daryanani v Ramnani [2017] EWHC 183 at [6]. (see also Ruta v Department of Work and Pensions [2022] EWHC 1535 at [38]).
This is not a case where the body of the concerns notice identifies harm in any readily identifiable way. It is all the more a problem because of the total lack of reference to the publication dated 16 June 2022. It would need to be identified with some care because of the difficulties of showing harm arising from a publication to a sole person whose familiarity with the documentation resulted in further correspondence with Council after receipt of a number of files under a freedom of information application, complaining about not receiving the precise documents she was looking for. Nor is there any information about why only the defendants' documentation, as opposed to the vast array of documents produced (as well as the judgment of the Land and Environment Court) caused the serious harm.
The importance of particulars identifying this kind of causation has been emphasised in many English decisions, notably Tewari v Khetarpal & Ors [2022] EWHC 2066 at [46] - [47] and Soriano v Société d'Exploitation de L'Hebdomadaire Le Point SA & Anor [2022] EWHC 1763 at [47] - [49] ("Soriano"). The failure to provide particulars means that no causation can be demonstrated.

[10]

The relevant statutory provisions for extension of time

The Limitation Act 1969 (NSW) s 14 provides: "14B DEFAMATION (1) 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. (2) The 1-year limitation period referred to in subsection (1) is taken to have been extended as provided by subsection (3) if a concerns notice is given to the proposed defendant on a day (the "notice day" ) within the period of 56 days before the limitation period expires. (3) The limitation period is extended for an additional period of 56 days minus any days remaining after the notice day until the 1-year limitation period expires. Example : Assume a concerns notice is given 7 days before the limitation period expires. This means that there are 6 days left after the notice day before the period expires. Consequently, this subsection would operate to extend the limitation period by 56 minus 6 days, that is, 50 days. (4) In this section-- "concerns notice" has the same meaning as in the Defamation Act 2005 . "date of publication" , in relation to the publication of matter in electronic form, means the day on which the matter was first uploaded for access or sent electronically to a recipient."
Section 56A 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 may extend the limitation period to a period of up to 3 years running from the date of the alleged publication of the matter if the plaintiff satisfies the court that it is just and reasonable to allow an action to proceed. (3) In determining whether to extend the limitation period, the court is to have regard to all of the circumstances of the case and in particular to-- (a) the length of, and the reasons for, the plaintiff's delay, and (b) if a reason for the delay was that some or all of the facts relevant to the cause of action became known to the plaintiff after the limitation period expired-- (i) the day on which the facts became known to the plaintiff, and (ii) the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew whether or not the facts might be capable of giving rise to an action, and (c) the extent, having regard to the delay, to which relevant evidence is likely to be unavailable or less cogent than if the action had been brought within the limitation period."
Section 56D provides: "56D PRIOR EXPIRY OF LIMITATION PERIOD An order for the extension of a limitation period, and an application for such an order, may be made under this Division even though the limitation period has already expired."
The principles relevant to applications for an extension of time in defamation proceedings are set out by Hislop J in Cassar v Network Ten Pty Ltd [2012] NSWSC 680 at [16]: "It has been held in respect of s 56A (or its equivalent in other States) that: (a) the burden that must be discharged is to establish that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the date of the publication - Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537, Rayney v The State of Western Australia (No 3) [2010] WASC 83 at [41]; (b) the onus rests with the plaintiff - Rayney [41], Ahmed v Harbour Radio Pty Limited [2010] NSWSC 676, Carey v Australian Broadcasting Corporation [2010] NSWSC 709, (2010) 77 NSWLR 136 at [45]; (c) the test is objective - Noonan [20], Carey [48]; (d) it is a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances - Rayney [41]; (e) if the plaintiff proves the fact then the court is obliged to extend time. Extension in these circumstances is mandatory - Ahmed [28], Carey [45]; (f) section 56A limits the period of extension to an extension "of up to three years running from the date of publication". This has been described as involving the exercise of a discretion in the sense of involving a normative judgment - Ritson v Gay and Lesbian Community Publishing Limited [2012] NSWSC 483 at [24], [25]."" [Citations omitted]
The relevant principles were more recently summarised by Bromwich J in Do v Kolsumdet Pty Ltd at [2] as follows: "The following authorities on s 56A and its equivalents in other jurisdictions adequately explain what is needed for an application under that provision to succeed: Joukhador v Network Ten Pty Ltd [2021] FCAFC 37; 283 FCR 1 per Rares, Wigney and Bromwich JJ at [49]-[54]; Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA; 96 NSWLR 478 per McColl JA at [69]-[72] and [103] (Simpson and Payne JJA agreeing); and most recently Paule v McKay (No. 2) [2022] ACTSC 190 per McWilliam AsJ at [17]-[31]. The principles were succinctly summarised in Paule v McKay (No. 2) as follows at [22]: The applicable principles that have emerged from the authorities are as follows: a) The statutory tests respectively require the Court to determine whether on an objective basis the reasons why the plaintiff did not commence the suit within time point to the conclusion that it was not reasonable to commence the action: Pingel at [115]. b) What is meant by "on an objective basis" is that the circumstances are as they appear objectively to the court and not the circumstances which the plaintiff believed, however unreasonably, to exist: Barrett at [70] citing Noonan at [20]. The focus must be on the individual circumstances of the case: Pingel at [42], and the plaintiff's actual reasons are a vital part of the circumstances pertinent to whether it was reasonable or not to bring the proceedings within the nominated period: Carey v Australian Broadcasting Corporation [2010] NSWSC 709; 77 NSWLR 136 at [48]. c) The burden of establishing that it was not reasonable to commence within the one-year period is on the plaintiff: Barrett at [70], citing Noonan at [15], although a plaintiff does not have to account for every day or week in a limitation year: Noonan at [49]." [Some citations omitted]
As the Full Court of the Federal Court explained in Joukhador v Network Ten Pty Ltd [2021] FCAFC 37, the combined weight of each of the factors identified by the plaintiff as establishing that it was not reasonable for him to have commenced proceedings before he actually did must therefore be taken into account. These are as follows: 1. The main reason given by the plaintiff was that, when he received the matters complained of in May 2020, the names of the defendants had been redacted, so he did not know who to sue. He agreed, however, that he could have, and did, ask other residents who they were. He did not bring an application for discovery before action because he was able to find out their identities without any difficulty. 2. The second reason given is that the plaintiff did not realise that someone could consult Council to obtain these defamatory documents years after the court proceedings were concluded. However, if these publications were defamatory, he could have brought proceedings at the time; he acknowledged that he had brought defamation proceedings in this court against other objectors (Mr and Mrs Barnes, who are referred to in Red Packet Investments Pty Ltd v Blue Mountains City Council at [11]) at the time. 3. The third reason given by the plaintiff for not suing on the earlier publications at the time was because he believed that they were published on occasions of qualified privilege, and that as a result he had a weak case. A similar submission was advanced in Newcombe v O'Connor & O'Connor [2022] QDC 19, although that submission was based on difficulties in identifying the plaintiff. The plaintiff argues that until the matters complained of were re-released under freedom of information legislation, his case was weak. However, there would be no reason why these same letters would no longer be protected by this defence. Council released them more than two years later, in response to a specific demand under legislation, for that purpose only, in circumstances where the defendants had played no part in that release. This is a fanciful argument, and I reject it for the same reasons as in Newcombe v O'Connor & O'Connor. 4. The plaintiff said he was a litigant in person with little understanding of the law. He has been, however, able to conduct other defamation litigation in this court and is familiar with terms such as "serious harm". I have addressed this submission (which I anticipate hearing in other applications) in more detail at the end of this judgment.
At all relevant times since May 2020 the plaintiff has had the publications in his possession and has been in a position to identify the defendants without much difficulty. His explanation of believing these publications to be protected by qualified privilege at the time but somehow no longer being protected is implausible.
In submissions in reply, the defendants submit that effectively no explanation has been given at all, and that the plaintiff's reaction to the asserted recent publication as somehow reactivating all the hurt and damage should be viewed with suspicion, as should the circumstances in which that recent publication was made (which, due to the very late service of this material, they had been unable to verify).
The plaintiff has failed to establish that it was not reasonable for him to commence proceedings prior to 21 July 2022. This is a very clear case where time should not be extended.

[11]

What publications, if any, remain?

The concerns notice also referred to a claim for slander: "In addition to the written imputations, your letters refer to negative verbal remarks and/or comments you have made or invited, and continue to make and invite, to and other people about me and my professional work that may be interpreted as slanderous. In spite of Council's cautions in their letters to you, Council's published website policies, and the legislation governing public participation in Das [sic], to not include complaints of a personal nature or of civil disputes, you have made a number of false statements in your letter, statements that are of a personal nature and that fall outside of "planning principles", and that are defamatory. You have done so in the full knowledge that they are publicly available, and your actions have been actuated by a reckless indifference to the truth, personal animosity towards me and malice. You have caused and are likely to continue to cause further serious harm to me."
A campaign of slander "since 2013" was pleaded in the statement of claim as follows: "Particulars of slander, vexatious complaints to Council 31. Since 2013, the First and Second Defendants have made numerous vexatious complaints to Council to get the ranger to make visits to the Plaintiffs property as a form of harassment and intimidation. 32. In both tetters, the Defendants describe inviting and making negative statements about the Plaintiff (Paragraph 4 - Letter A, Paragraph 8 - Letter 8) from late 2019 onwards, 33. Defamatory statements made to other residents include: a. The Plaintiff Is disdainful of the environment. b. The Plaintiff allows weeds to grow. c. The Plaintiff does not provide shadow diagrams for mid-summer. d. The Plaintiff has flashing lights strung up in the trees. e. The Plaintiff does not know how to design houses for Blackheath."
This plea is defective for the following reasons: 1. The distinction between slander and libel has been abolished (s 7 of the Defamation Act 2005 (NSW)). There is no common law action for slander. 2. The claim goes back to 2013. Claims for the period from 2013 to 21 July 2019 would be statute-barred. Claims from that date onwards would need to be the subject of an application for extension of time. No such application is before me. Any asserted slanders after 21 July 2021 would need to be specified in the concerns notice in terms of date and content, which has not been done, and particulars of serious harm provided, which has also not been done. 3. The bringing of a claim for any form of defamation (including "slander") for statements on unknown dates of unknown content is impermissible: Emmerton v University of Sydney [1970] 2 NSWR 633. The claim is also impermissibly rolled up, in that there is no breaking down of the allegations in relation to individual publications. No imputations are pleaded for each of these asserted publications. 4. The only information as to content which is ascertainable is the inclusion of a claim for the two matters complained of. Although this is a trifling objection, I would point out that these are in writing and could never be described as "slander". More importantly, to bring more than one claim for defamation over the same two matters would amount to abuse of process: Maple v David Syme & Co (1974) 1 NSWLR 290; Sarina v O'Shannassy [2019] NSWDC 246 (proceedings commenced in the District Court of NSW and in the Federal Court of Australia for the same publications); Raghubir v Nicolopoulos [2022] FCAFC 97 (proceedings commenced in the Supreme Court of NSW and in the Federal Court of Australia for the same publications).
For the above reasons, the claim for slander should be struck out. This means that the whole of the statement of claim is defective and must be struck out.
Costs should follow the event.

[12]

Concluding remarks: concerns notices and litigants in person.

This is the second time that I have struck out a concerns notice which fails to comply with ss 10A, 12A and 12B where the proceedings in question have been commenced by a litigant in person (see also M1 v R1 & Ors [2022] NSWDC 409).
There have been other actions brought by litigants in person where the concerns notice procedure set out in ss 12A and 12B has clearly not been complied with. In Raghubir v Nicolopoulos [2022] NSWSC 386, the plaintiffs commenced defamation proceedings without serving a concerns notice at all. At [19], Sackar J identified failure to comply with s 12B as a "defect", but did not include this in his reasons for dismissal of the proceedings, as there were numerous other defects in the proceedings besides the asserted non-compliance with s 12B. It is, however, unclear whether there were in fact publications postdating the 1 July 2021 amendments. (These same litigants commenced proceedings in the Federal Court (Raghubir v Nicolopoulos [2021] FCA 1073) at the same time as the proceedings in the Supreme Court, but the issue of service of a concerns notice was not an issue, as the main question was whether the Federal Court had jurisdiction.)
In David v Gabriel [2016] EWHC 2799 (QB), a litigant in person sought an indulgence where a defective plea of serious harm had been made. Sir David Eady stated: "20. One is sometimes inclined to give a litigant in person an opportunity to correct mistakes by amendment. Here, however, it is not a matter of mere technicality. The criticisms go to matters of substance (and of pleading practice founded in fairness and common sense). Moreover, the defects now relied upon by the Defendants were pointed out in correspondence."
Similar warnings were given by Bell P (as his Honour the Chief Justice then was) in Duraisamy v Sydney Trains [2019] NSWCA 269 at [25], in relation to the conduct of litigation by litigants in person generally.
The amendments to the uniform legislation providing for a concerns notice procedure and a requirement to particularise serious harm with care are important reforms, aimed at encouraging parties to resolve their differences away from the court system. The policy decisions behind this legislation (set out by Sackar J in Newman v Whittington) need to be understood and taken into account by all concerned, including litigants in person.

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