Woolf v Brandt

District Court of NSW|2023-10-27|Before: Levine J

Stoltenberg v Bolton [2020] NSWCA 45 Van Garderen v Channel Seven Melbourne Pty Ltd & Ors (Ruling) [2016] VCC 953 Woolf v Brandt [2022] NSWDC 623 Woolf v Brandt (No 2) [2023] NSWDC 184 Woolf v Brandt (No 3) [2023] NSWDC 215 Texts Cited: New South Wales, Law Reform Commission, Report 11 (1971) - Defamation Category: Procedural rulings Parties: Richard Farrell Woolf (plaintiff) Nicholas Brandt (defendant) Representation: Counsel: Mr R Armitage (plaintiff) Mr T Smartt (defendant)

Solicitors: Youth Law Australia (defendant) File Number(s): 2023/00272563 Publication restriction: Nil

The plaintiff brings proceedings for defamation

The matters complained of

The plaintiff and defendant commenced a romantic relationship when the plaintiff was 31 years old and the defendant 16 years old. That relationship lasted from August 2017 to either December 2019 or July 2020. After the relationship ended, there were disputes about their future association with each other and the defendant published two posts about their ongoing issues: 1. The first of these was published 11 May 2021, the day after the plaintiff sent him up to a hundred phone and text messages. The defendant said the plaintiff had not accepted the end of their relationship and was stalking the defendant. This post was taken down eleven days later, at the plaintiff's request. In the particulars of publication, the plaintiff identified three persons as having read this post. 2. The second of these (which did not identify the plaintiff by name) was published on 28 August 2021. It described their sex life and relationship problems. The plaintiff sent angry letters to the defendant in response, but did not ask for it to be taken down until 14 April 2022. The defendant restricted the post's viewability to himself on 3 May 2022. The plaintiff identifies 24 persons who read this post, adding that the defendant had 52 Facebook friends.
The striking out of the first publication is the subject of an application for leave to appeal and I have assumed that, if the plaintiff is successful in that appeal, he will seek to add this publication as an additional cause of action. For the time being, however, the only claim brought is the second publication.

The defendant's applications

The defendant seeks summary dismissal on the following bases: 1. The claim is brought after expiry of the one-year limitation period under s 56A(2) of the Limitation Act 1969 (NSW). The plaintiff has not brought any application for an extension. The defendant submits that any such application, if made, should not be granted. 2. In addition, the plaintiff has not sought leave under s 23(2) of the Act to bring a second defamation claim against the same defendant for the same publication. 3. Taking into account the above failures and the history of these proceedings, this action should be summarily dismissed as an abuse of process.

A brief procedural history

The first publication was published prior to amendments to the Act coming into force in New South Wales on 1 July 2021, which is the applicable legislation. However, the second publication (namely the publication the subject of this application) was published after amendments to the Act which included the introduction of compulsory concerns notices (ss 12A and 12B of the Act), made changes to the legislation to make the bringing of applications for an extension of time to commence proceedings easier, and additionally introduced the single publication rule for all publications from that date.
As to the first of these changes, a fresh concerns notice had to be served before further proceedings concerning this publication could be commenced. It was not until after a holding appeal on the judgment of 14 December 2022 lapsed that, on 22 March 2023, the plaintiff served a fresh concerns notice, and not until 27 August 2023, two years after publication of the matter complained of (taking into account the newly legislated single publication rule) that he filed the statement of claim.
The defendant brought this application on the first return date and a timetable for evidence and submissions was made.

The evidence

The plaintiff relies on the following evidence: 1. The affidavit of Richard Woolf affirmed 25 May 2023. 2. The affidavit of Richard Woolf affirmed 20 October 2023. 3. The affidavit of Stewart O'Connell affirmed 24 May 2023. 4. The affidavit of Stewart O'Connell affirmed 11 May 2023.
The defendant relies on the following evidence: 1. The affidavit of Mitchell Robert Caldwell affirmed 8 December 2022. 2. The affidavit of Kim Renae Richardson affirmed 31 March 2023. 3. The affidavit of Kim Renae Richardson affirmed 10 October 2023.

Extension of the limitation period

The first issue for determination is whether it is just and reasonable to allow the plaintiff's action for defamation to proceed.
Section 56A of the Limitation Act 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. (Emphasis added)

The defendant's submissions

The defendant submits the following factors are relevant: 1. Section 56A(3)(a): The defendant submits that there have been delays in the commencement of proceedings, falling into the following categories: 1. From publication of the matter complained of until the commencement of the proceedings which were struck out, namely on 14 December 2022. 2. There was delay in the conduct of those proceedings from 14 December 2022 up to the hearing of this application, including the delay between that date and the service of a fresh concerns notice on 10 May 2023. There was also delay between 10 May 2023 and the commencement of these proceedings on 27 August 2023, two years after the date of the original publication. 3. The plaintiff could not even comply with the timetable for filing affidavits and providing submissions in this application. There is no formal application for an extension of time and the reasons for delay have to be gleaned from an affidavit from the plaintiff which simply recites court dates. While both sides were late with their affidavits, the plaintiff's delay was such that Mr Armitage had to give his submissions concerning two of the defendant's three applications orally and his submissions on the third, although in writing, were served only an hour and a half before the hearing. 1. Section 56A(3)(b): The defendant submits that no explanation has been provided for the delay and that there is no claim that some or all of the facts relevant to this cause of action only became known to him after the limitation period expired. No affidavit identifying relevant factors has been served. 2. Section 56A(3)(c): The plaintiff's delay will have an impact on the evidence available to the defendant, in terms of presumptive prejudice. The plaintiff was not named in the defendant's post and there can be no evidence of publication unless persons read the matter complained of and identify the plaintiff, including the basis upon which they did so, are set out in a "platform of facts" in Sims v Jooste [No 2] [2016] WASCA 83 at [17]-[19]. This requirement has been repeatedly stressed: Stoltenberg v Bolton [2020] NSWCA 45 at [56]; Newman v Whittington [2022] NSWSC 249 at [10]-[28]; Massarani v Kriz [2022] FCA 80; (2022) 400 ALR 718 at [53]; Duffy v Google LLC [2022] SASC 40 at [19]-[23]; Cronau v Nelson (No 2) [2018] NSWSC 1905; Lorbek v King [2022] VSC 218 at [43]-[49]. The defendant submits that it is unlikely that any potential witnesses in the case would now remember what they thought about posts made by the defendant on Facebook in August 2021. 3. Section 10A of the Act: The plaintiff must establish that serious harm was occasioned by reason of the publication. The danger of commencing proceedings at the end of the limitation period in terms of its impact on serious harm was noted by Brereton JA in Rader v Haines [2022] NSWCA 198 at [39]. The plaintiff has exacerbated that delay by commencing proceedings two years after publication. This would mean that, in an already limited publication (in terms of numbers of downloaders), where the plaintiff was not named, any chance of the plaintiff making out that substantial harm to reputation had occurred would be significantly diminished.

The plaintiff's submissions

The plaintiff relies upon Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385 and Joukhador v Network Ten Pty Ltd [2021] FCAFC 37, but first hinted that an extension of time may not be necessary at all.
Mr Armitage suggested that, where a plaintiff has commenced proceedings which have been struck out under s 12A or s 12B of the Act, whatever the reason (but in particular a technical failure such as occurred in these proceedings), the limitation period no longer applies, and the plaintiff can recommence proceedings at any time simply by sending the correct notice and then refiling, either in the same proceedings or in a fresh claim.
Alternatively, if leave is required, the plaintiff submits: 1. Where an extension of time is required but where struck-out proceedings were commenced in time, the court should take a liberal view of the delay and essentially just treat the application for extension of time as a formality. 2. The plaintiff's delay in the present case is not his fault. It can be sheeted home to his legal representatives and/or to his being preoccupied with other litigation, namely: 1. Criminal complaints: In about 21 July 2022 the plaintiff made a report about the defendant's conduct to the police. I am unclear about the nature and extent of these allegations (although Mr Smartt points out that, a year later, the police have taken no steps since the plaintiff's complaint). These allegations appear to range over a variety of topics and Mr Smartt notes, in paragraph 19 of his submissions to the Court of Appeal, the plaintiff's statement that the defendant "committed criminal and domestic violence offences…that I estimate would have him incarcerated for approximately 15+ years" (affidavit of Kim Richardson of 10 October 2023). 2. Appeal issues relating to the proceedings previously on foot: The plaintiff lodged an application for leave to appeal my decision of 14 December 2022, which lapsed in March 2023. 3. The summary dismissal of the proceedings for the first publication: The defendant successfully brought an application to strike out the proceedings based on the first publication as an abuse of process, which was commenced on 11 May 2022 and heard on 25 May 2023. 4. The application for leave to appeal the summary dismissal referred to in (iii) above: The application the plaintiff now has for leave to appeal the striking out of the first publication is listed for hearing on 30 November 2023. 1. The delay in question is trivial, in that it is only a matter of a few months.

Judicial observations as to the previous and current limitation provisions

I am unaware of there being any other applications for an extension of time being brought specifically pursuant to the amendments which became operative in New South Wales on 1 July 2021 which, by reason of the date of this publication, are the provisions that apply. There are, however, some helpful observations in judgments on the legislation prior to that date to which I am able to refer.
The following judgments have dealt with limitation issues and/or the future impact of the single publication rule for publications made prior to the relevant date, but where a new publication after that date, or is part of an online publication still accessible after that date: 1. KMPG Pty Ltd v Owen [2023] FCA 987: The applicant was granted an extension of time under s 40(2) of the Limitation Act 2005 (WA) until 2 August 2022, save for publications that occurred on and between 2 June and 2 August 2021. Unfortunately, this decision is of no assistance. Although some publications were made after 1 July 2021 date, the legislative scheme prior to 1 July 2021 applies in Western Australia, no matter what the date, as the amending legislation, the Court notes (at [5]), has not been enacted. The single publication rule (s 14C of the Limitation Act in New South Wales) similarly has no equivalent in Western Australia. 2. In JTD v PDL (No 3) [2023] QDC 5, the publications were made prior to the 1 July 2021 amendments but, because Queensland had enacted the legislative reforms, the issue of the single publication rule is referred to in passing. The same was the case in Ingram v Ingram [2022] NDWDC 653, McVicker v Australian Broadcasting Corporation [2023] QDC 167 and McKay v Paule [2022] ACTCA 72. This situation would also have arisen in Musicki v de Tonnerre [2023] FCA 222 (this publication was online for a lengthy period: see [9]), but no judgment appears to have been handed down. 3. In Lehrmann v Network Ten Pty Limited (Limitation Extension), the relevant publications were made prior to the enactment of the amending legislation. This decision contains helpful observations as to the impact of the 2021 amendments concerning limitation and the impact of the single publication rule. 4. In Isaac v TCN Channel Nine Pty Ltd [2023] VSC 70, leave was sought for publications made both before and after the amendments took effect. Leave granted for publications made prior to the amendments taking effect, but consideration of post-amendment publications was deferred.
Lee J's observations as to the interaction between the former and current statutory provisions in Lehrmann v Network Ten Pty Limited (Limitation Extension) are limited by reason of the parties asking him not to determine the issues arising from the changes to the legislation (at [7]), but are nevertheless of great assistance: "[3] Before identifying the details of the limitation issue, I note the evidence adduced on the applications is canvassed in significant detail below. This material constitutes the basis upon which these applications fall to be determined, together with facts not reasonably open to question, which are either common knowledge or capable of verification by reference to a document the authority of which cannot reasonably be questioned: see s 144 of the Evidence Act 1995 (Cth) (EA). It might be thought trite to mention that these applications are to be determined by reference to the material placed before the Court, but it is appropriate given the widespread publicity and speculation surrounding the allegations against Mr Lehrmann, dealings between the Australian Federal Police (AFP) and the Director of Public Prosecutions (DPP) and dealings between the legal representatives of Mr Lehrmann and the AFP (and the existence of ongoing non-judicial inquiries). [4] There was some confusion as to when the relevant limitation periods started to run. Mr Lehrmann submitted that all relevant causes of action accrued on the initial date of publication, being 15 February 2021. But the true position is more complicated than first appears. [5] The post 1 July 2021 effect of s 14C and Sch 5, cl 11(3) of the Limitation Act 1969 (NSW) (Limitation Act) (relevant amendments) is that the single publication rule in s 14C "extends to a first publication before the commencement of the section, but only in respect of subsequent publications after the commencement". Prior to 1 July 2021, every publication of defamatory matter created a separate cause of action, with the limitation period running for each cause of action. Network Ten Pty Limited (Network Ten), News Life Media Pty Limited (News Life) and Ms Samantha Maiden (together, the respondents) submit that the common law multiple publication rule continues to apply to publications between 15 February 2021 and 30 June 2021, and that in relation to the: (1) Network Ten Proceeding (first matter): all causes of action accrued on 15 February 2021 and hence the limitation period expired on 14 February 2022; (2) Network Ten Proceeding (second matter): causes of action accrued between 15 February 2021 and no later than 16 May 2021 and hence the limitation period expired progressively in respect of those causes of action between 14 February 2022 and no later than 15 May 2022; and (3) Network Ten Proceeding (third matter); News Proceeding (first matter and second matter): causes of action accrued between 15 February 2021 and 30 June 2021 (all publications occurring on or after 1 July 2021 being deemed to have accrued on 15 February 2021) and hence the limitation period expired progressively in respect of those causes of action between 14 February 2022 and no later than 29 June 2022. [6] Mr Lehrmann submits the relevant amendments only apply "in relation to the publication of defamatory matter after the commencement of the amendment": Sch 4, cl 7 of the Defamation Act 2005 (NSW) (Defamation Act); Sch 5, cl 11 of the Limitation Act. He further submits that in Barilaro v Google LLC [2022] FCA 650 (at [376]-[381]), Rares J construed these transitional provisions to mean that the amendments did not apply when publication occurred before the commencement date but remained available for download after commencement, and that the amendments applied only when the first publication occurred after commencement. But this is open to some doubt: Barilaro was concerned with the availability of defences that came into operation on 1 July 2021 to continuing publications first published prior to that date; it was not concerned with the application of the limitation period to such publications. [7] Following the relevant amendments, the limitation period remains one year but the test for extending the limitation period is different and now provides for an extension where the Court is satisfied that it is just and reasonable to do so. Despite this, all parties expressly submitted it was unnecessary for me to form a final view on the limitation effect of the transitional provisions."
I also note Lee J's reference to the history behind the reduction of the time for commencement from the six-year period generally available for torts and the one-year period available in New South Wales since 2002 and, in other States and Territories as well, since the unform legislation was enacted: "[21] In contrast to most torts, which generally have a six-year limitation period, in New South Wales, since 2002, the legislature has reduced the time for bringing a defamation case to one year. This truncated period was first introduced as part of a suite of amendments to facilitate the new statutory objectives of the Defamation Act 1974 (NSW) being, among other things, to promote the resolution of defamation proceedings "in a timely manner" but also, importantly, to promote "speedy and non-litigious methods of resolving disputes": see s 3(d). This limitation period was mirrored in the uniform legislation passed in 2005. Also mirrored nationally were means to achieve speedy non-curial resolution including the mechanism in Pt 3 Div 1 allowing a concerns notice to be issued to the publisher of the alleged defamatory material, with the publisher then having 28 days to make an offer to make amends. Further, for matters proposed to be commenced in this or another federal court, the availability of prompt modes of dispute resolution complements the objective in s 3 of the Civil Dispute Resolution Act 2011 (Cth) (CDR Act) "to ensure that, as far as possible, people take genuine steps to resolve disputes before certain civil proceedings are instituted". [22] A tight limitation period applies, but it is an entire year. This is a period during which a claimant is allowed, and would be expected, to: reflect and consider maturely whether the proposed litigation is able to be resolved without litigation; consider whether the cost of litigation would be proportionate to the extent of perceived damage; conduct necessary enquiries as to the identity of the respondent or respondents; and decide whether there is sufficient material to decide to litigate. Finally, if litigation is to be commenced, there is a need to ensure sufficient material is available to the person settling the claim to provide a proper basis for any allegations proposed to be made. But more generally, the period of a year also allows a potential litigant time to see how things go. Was the damage as bad as first imagined? Will I let sleeping dogs lie or risk stirring up the controversy by suing? A claimant is entitled to reflect upon what might be a life-changing decision bringing stress and potential adverse financial consequences."
In Lehrmann v Network Ten Pty Limited (Limitation Extension), unlike Joukhador v Network Ten Pty Ltd, the applicant had read the matter complained of almost immediately and obtained legal advice. The other factors (criminal proceedings, the right to silence and health issues) are, however, common to both.
Unlike applications for extension of time in personal injury proceedings, in none of these judgments, or in the facts before me, is there any suggestion that the plaintiff/applicant was unaware of there being a one-year period of time in which to commence proceedings.

The limitation legislation amendments in context

The changes to the legislation to introduce "just and reasonable" must be viewed in the context of the amending as well as the existing provisions. I particularly note: 1. The new test should be much easier for plaintiffs to succeed in obtaining an extension. While the factors relevant to the court's discretion are likely to remain similar (such as ill health, criminal proceedings, unawareness of the publication), the more generous test of what is "just and reasonable" replaces a test that was often criticised as being too harsh. 2. The term "just and reasonable" is well known in terms of legislative interpretation. It also appears in s 12B(3)(b) of the Act. 3. Under both tests, examples of conduct of concern include the nature and extent of the delay, and such delay must be viewed in the context of the one-year time period in which defamation actions must be brought. 4. Extreme delay may be found to amount to abuse of process: Galam v Shahin [2023] SASCA 27 at [9]; application for leave to appeal dismissed: Galam v Shahin [2023] HCASL 88. The acknowledged impact of delay on serious harm may result in courts taking a stricter approach with actions to which the amending legislation applies, even though the "just and reasonable" test is more generous.

Is an extension required at all?

The preliminary issue is whether an extension of time to commence proceedings is required at all.
The plaintiff's argument is put on the basis that, if the concerns notice is faulty, the original filing of the statement of claim is merely stayed or otherwise in limbo and not actually struck out for failing to comply with s 12B. This argument was only hinted at in passing, perhaps with the intention of enlarging it on appeal, so I restrict my observations, in the absence of more detail, to agreeing with the principles of law set out in the judgment of Brown J in Hooper v Catholic Family Services trading as Centacare Catholic Family Services [2023] FedCFamC2G 323 at [62] - [87].

Application of these principles to the facts in this case

When dealing with the relevant principles for extending time, where a person who complains of being defamed is also subject to criminal and/or disciplinary proceedings and his "primary objective" was to fight the criminal charges that had been laid against him (Joukhador v Network Ten Pty Ltd at [39]), courts have been sympathetic to a decision to defer defamation proceedings until either the position has been clarified or the criminal proceedings resolved. There may be significant health issues arising as well as the stress involved.
Mr Armitage did not rely on these "right to silence" issues, but relied on Joukhador v Network Ten Pty Ltd as authority for a general proposition that a plaintiff who has other court proceedings requiring his attention can expect the court to understand and countenance delay.
However, there are very significant differences between the facts in Joukhador v Network Ten Pty Ltd and the present case. First of all, it was accepted that Mr Joukhador had not seen the publication in question until after the limitation period had expired. Second, the other proceedings should be those in which a right to silence may be invoked. Third, health issues must be of a substantial nature. Lee J considered all of these to be crucial factors in Landrey v Nine Network Australia Pty Ltd [2023] FCA 27 at [61]-[65]: "[61] As I have repeatedly noted, the burden of establishing that it was not reasonable to commence a proceeding within the one-year period is on Mr Landrey. I am conscious that in assessing whether this burden has been discharged the focus must be upon an objective assessment of the individual circumstances of the case. Despite this, it is worth stressing three matters of principle which transcend individual circumstances: first, the general notion that where a person is facing a criminal charge (or reasonably anticipating a criminal charge) and the publication raises questions of the applicant's guilt or innocence, it will ordinarily not be reasonable to commence civil proceedings of a kind that realistically could allow forensic examination of matters bearing upon guilt or innocence; secondly, too ready an acceptance of circumstances that are said to have made it unreasonable to sue would undermine the evident statutory intention; and thirdly, the Court is required to evaluate all of the objective circumstances as a whole, not piecemeal. [62] For the reasons I have explained, I am less than convinced as to Mr Landrey's actual reasons for failing to commence a proceeding in time. I do not discount the possibility that the evidence as to his subjective reasons may be correct, but the affidavit material is less than compelling, particularly as to Mr Landrey's concerns about maintaining his right to silence and as to his health. Mr Landrey seemed content to proceed on the basis that all that need be done is to point to extant criminal proceedings and the general observations of the Full Court in Joukhador. [63] I have already partly explained why this case is quite different from Joukhador, but additionally, it was accepted that Mr Landrey, unlike Mr Joukhador, became aware of the Television Broadcast when it first aired. Indeed, far from failing to investigate the matter further, Mr Landrey sought the advice of his solicitor, who subsequently sent a letter of demand on behalf of Mr Landrey to Nine Network on 5 January 2020, putting them on notice that Mr Landrey intended to commence a defamation proceeding: Whitfield Affidavit (at [18]). [64] It is relevant to note that, by this time, Mr Landrey had not yet been charged, and the only communications in evidence that he had received from the NSW Police were the two communications from DSC Schussler. It was not until 10 April 2020 that the first CAN was served on Mr Landrey. Yet, despite the asserted need to focus his attention on the criminal allegations made against him, Mr Landrey was actively engaged in various civil proceedings during this time. This included filing a defence in the Barnes Proceeding on 9 January 2020 and a reply and particulars in the Galea Proceeding on 24 January 2020. Furthermore, the evidence is that Mr Landrey was acting as the solicitor for both Combined Property Holdings and Naturelink, including in relation to "matters relating to the property the subject of the criminal charges", although at some point in time, he was unable to renew his practising certificate: Whitfield Affidavit (at [61], [64]). [65] Looking at the matter objectively, and even making necessary allowances for some health difficulties and the vexation of criminal proceedings, Mr Landrey's explanation is objectively insufficient, particularly where there was no concern about delving into detail about the facts which were the subject matter of the criminal proceedings in the Galea and Barnes Proceedings. The additional time and effort involved in commencing defamation proceedings (and then presumably seeking a stay) would have been, at most, incremental given the steps he was taking in the other proceedings and, in any event, as the respondents submit, would have been less intrusive and imposing than the steps Mr Landrey took in the Galea Proceeding. One matter not addressed in Mr Landrey's submissions is why he is sufficiently unburdened by ill health and distractions to commence proceedings and make an application now, and yet was incapable of commencing proceedings and seeking a stay application during the one-year period."
The plaintiff cannot point to any of these factors. First, there is no doubt that he read the matter complained of within days, if not hours. Second, he is not facing any criminal proceedings; to the contrary, as Mr Smartt pointed out, he is hopeful that the defendant will receive a prison sentence of up to 15 years. Third, there is no evidence that the plaintiff suffers from any health issues.
Although "just and reasonable" was not the test in these decisions, that does not assist a plaintiff who has no real explanation for his delay except to blame his legal advisers.
The plaintiff's complaints about his legal advisers (as set out in his complaints to the relevant bodies, copies of which are attached to his affidavit) are without substance. In practical terms, the plaintiff was represented by senior and experienced defamation barristers and solicitors at all relevant times during and after the expiry of the limitation period. He consulted lawyers after the first publication, as he told the defendant in his post in response, and he consulted a reputable firm of solicitors (albeit specialising in crime) shortly after the second publication. From January 2022, he was in the hands of specialists. Although Mr Armitage told the Court that there was "delay" caused by these legal practitioners "mucking around" (such as not getting back to the plaintiff's January 2022 request to act for several weeks), there is no causal nexus between their conduct of these proceedings and the plaintiff's delay in serving a concerns notice after 14 December 2022 and then filing 28 days later what should have been a simple recasting of the existing pleading.
If I have erred in holding that the plaintiff should be able to blame his legal advisers, there is an additional issue about the conduct of these legal representatives. Mr Armitage suggests that, as is the case in personal injury proceedings, courts regard delays by solicitors as letting the plaintiff off the hook where a claim has not been filed in time.
There are few judgments on this issue, but they suggest to the contrary. In Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175, the Queensland Court of Appeal (Fraser JA and Fryberg J; Applegarth J dissenting) considered an application for an extension of time under s 32A of the Limitation of Actions Act 1974 (Qld). The plaintiff consulted solicitors shortly after publication in June 2008, but it was not until February 2009 that her solicitors sent a concerns notice, which was followed by discussions while the limitation period crept ever closer. Those delays were in part due to the plaintiff's solicitor, but also delays by counsel in settling the concerns notice and other relevant material. Fraser JA stated that "… for present purposes the delays must be attributed to the respondent" (at [37]), adding that "the respondent must be regarded as the author of her own misfortune". While the case was not determined on that basis, at the request of the parties, these are sentiments which are inconsistent with judicial indulgence towards the profession's failings as excusing a plaintiff's delays.
Fraser JA's statements in Pingel v Toowoomba Newspapers Pty Ltd at [37] have been cited with approval in Casley v Australian Broadcasting Corporation [2013] VSC 251 at [27], in Casley v Australian Broadcasting Corporation [2013] VSCA 182; 39 VR 526 at [42] and in Johnston v Holland [2017] VSC 448 at [13(a)], [17(f)] and [42] (see also Parizian v Seven Network Limited [2018] NSWDC 296 at [22]).
A clear statement to this effect was made in Van Garderen v Channel Seven Melbourne Pty Ltd & Ors (Ruling) [2016] VCC 953. The plaintiff's solicitors in those proceedings were carrying out the dangerous practice of only filing the statement of claim at the last possible minute (a common feature of defamation claims, as the facts of this case, Rader v Haines and many others demonstrate) but were unable to file the statement of claim in time, due to electronic filing problems. O'Neill J remarked: "85 There is a further matter to be considered. That is, whether the sins of the solicitor (or counsel) ought to be visited upon the plaintiff. In applications for extension of time in respect of personal injury proceedings it is often said that if a plaintiff promptly consults a solicitor and does everything reasonable to provide instructions and prosecute a proceeding, otherwise leaving the conduct in the hands of his or her lawyers, the failure of those lawyers ought not lead to a refusal to extend time unless specific or general prejudice to the defendant can be shown. The availability of a cause of action against the solicitor is a relevant matter to take into consideration. I was not taken to, nor have been able to find authority on point in respect of an extension of time in defamation proceeding."
O'Neill J has now been joined on this issue by Lonsdale DCJ in Pastor v Aegis Aged Care Staff Pty Ltd [No 3] [2022] WADC 82 at [27] (citing both O'Neill J and Pingel). The plaintiff in those proceedings was a litigant in person. There were subsequent appeals but the correctness of Lonsdale DCJ's views was not questioned.
However, the real difficulty with Mr Armitage's argument is that he cannot point to any particular action by a member of the legal profession that delayed the case in any way. The argument seems to be that the plaintiff had so many lawyers that they got into a muddle. It is clear from the chronology that the plaintiff had only one set of lawyers at a time and that after sacking the first two sets he retained Mr Armitage on a direct access basis. Mr Armitage and his predecessors may have different views as to how the litigation should be run but I see no evidence of delay causative of the failure to proceed with the action.
Mr Armitage next submitted that the delay in question is both trivial and inconsequential. I do not agree. The plaintiff delayed commencing proceedings for nearly eight months, which is two-thirds of the limitation period. In terms of defamation claims, that is a long period. The presumptive prejudice caused by memories growing dimmer is of particular concern in social media publications, and the fragile nature of social media interaction may be difficult to reconstruct.
Mr Armitage submitted that the period of delay was not the whole year; the claim would have been out of time by four months by the time the judgment striking out the proceedings was handed down on 14 December 2022. It would be unreasonable to expect the plaintiff to do anything over the Christmas vacation, when he did see solicitors they did nothing for several weeks and he had to send a fresh concerns notice which ate up another 28 days. When viewed in this light, Mr Armitage submitted, there was hardly any delay at all.
This is the only argument of substance. Mr Smartt first responded by pointing out that the plaintiff's solicitors were given immediate notification of the fatal defect in the concerns notice (namely commencing proceedings 16 days short of the 28-day notice period), but they failed to take any step to rectify the situation, only seeking leave pursuant to s 12B(3)(b) in the course of the strike-out hearing. Mr Smartt was critical of the plaintiff's legal advisers for not raising this issue (which I accept they knew about from the first) on the two occasions when I extended time for service. Whether they should have or not, there is no doubt that this problem was always known to the plaintiff and his legal representatives.
Mr Smartt next noted the many statements of principle about the dangers of delay in defamation proceedings and in particular about the practice of commencing proceedings at the end of the limitation period. Many of the judgments cited above set this out in detail. These are not new statements of principle; Levine J, in Campbell v Regional Publishers Pty Ltd (Supreme Court (NSW), Levine J, 30 October 1998, unrep), stated: "Where the plaintiff has been late in the initiation of proceedings, first, the quality of the remedy sought in defamation will or could be, severely affected both in terms of quantum and costs; and second, the requirement in a plaintiff diligently to prosecute the action will be one that demands strict adherence to the Rules of Court or directions given."
As to the first of these consequences, Levine J's reference to quantum has a particular resonance at a time when serious harm must now be established, as Brereton JA pointed out in Rader v Haines. As to the second, once the concerns notice had been served on 22 March 2023, there was no reason why the statement of claim could not be served 28 days thereafter. The plaintiff's submissions are silent on this point.
I set out the relevant authorities as to what amounted to "just and reasonable" in relation to the s 12B(3)(b) application in these proceedings (Woolf v Brandt at [43]-[61]), where I noted that a wide range of circumstances may be relevant to the exercise of the discretion.
In the present case, the plaintiff does not have any explanation for his delay which I have found to be satisfactory. He has not sought the extension, but has left it to the defendant to guess what his case would be, even though the onus lies upon him. He does not explain any personal or professional difficulty or concern. All that I am provided with in the plaintiff's affidavit is a list of court dates and what occurred over the relevant period.
Individually, each of Mr Smartt's arguments is compelling. Together, these arguments present an insuperable barrier to the plaintiff being granted leave to continue with these proceedings. The defendant's application for these proceedings to be struck out by reason of the action being brought out of time is granted.

Leave to commence under s 23 of the Act

Mr Smartt notes that there are no decisions on the interaction of s 23 with other provisions in the amended legislation, especially s 12B.
Section 23 of the Act provides: 23 Leave required for multiple proceedings in relation to publication of same defamatory matter (1) This section applies to a person who has brought defamation proceedings for damages, whether in this jurisdiction or elsewhere, against a person (a previous defendant) in relation to the publication of a matter. (2) The person may not bring further defamation proceedings for damages against a previous defendant or an associate of a previous defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought. (3) A person is an associate of a previous defendant if, at the time of the publication to which the previous defamation proceedings related, the person was - (a) an employee of the defendant, or (b) a person publishing matter as a contractor of the defendant, or (c) an associated entity of the defendant (or an employee or contractor of the associated entity).
The defendant makes a preliminary submission that I should refuse to follow the majority judgment in Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90, on the basis that the decision of the primary judge, McCallum J (Carey v ABC [2010] NSWSC 709) and the dissenting judgment of Beazley JA are to be preferred. The defendant accepts that this Court is bound to apply Carey v Australian Broadcasting Corporation and makes the following submissions on that basis, but raises this argument to enable this issue to be explored on appeal. I have referred to these issues in my earlier judgments and leave this issue for the Court of Appeal to determine.
That may also involve a consideration of whether a claim struck out pursuant to s 12A or s 12B has in fact been struck out at all, the argument that failed in Hooper v Catholic Family Services trading as Centacare Catholic Family Services at [62]-[67] (and to which I have referred above). This argument was firmly rejected by Brown J. I adopt and agree with his Honour's conclusions.
As to the importance of s 23 in terms of preventing vexatious claims, Mr Smartt drew my attention to paragraph 52 of the Law Reform Commission's Report 11 (1971) - Defamation: "We, think that a person defamed should not have an uncontrolled liberty to sue a defendant whom he has already sued in respect of the same report, article, speech or other matter. The law as to res judicata is not fitted to impose the appropriate restraint, either under the present rules as to causes of action or under the solution which we propose. Thus, if defamatory matter is published in a newspaper, judgment in an action for publication to residents of Sydney would not bar a second action for publication to residents of Newcastle. The second action might be stayed as vexatious, but it is perhaps a strong use of that power to stay proceedings on an undoubted cause of action which has not been litigated. We do not, however, think that second action should automatically be barred: the first action might have been for what was a very limited dissemination and the second for a general dissemination to the public, perhaps not occurring until after the first action was brought. We propose that a second action should not be brought except by leave of the court."
The drafters of the 1 July 2021 amendments not only left in s 23 when drafting notice provisions that could result in proceedings being struck out, but strengthened it. Does this mean that a plaintiff who makes a technical error could not only have the claim struck out but also lose his whole action because even if the claim is brought within time, leave is not granted?
In the absence of any authority, I am of the view that any plaintiff whose action for defamation is struck out due to failure to comply with notice provisions, particularly where there is only a technical non-compliance such as problems with the imputations or the location of the matter complained of, would have their application for leave viewed sympathetically. However, in the present case, the defendant argues that there is a degree of sharp conduct involved, in that the circumstances in which the claim was filed 16 days before the 28 day period had expired while the plaintiff's lawyers continued to correspond with the plaintiff forms part of the abuse of process complaint.
The difficulty I have in dealing with this application is that if the plaintiff's conduct in delaying the filing and serving of the statement of claim in these proceedings is part of the abuse of process about which the defendant complains, that may constitute grounds for refusing leave under s 23. As is set out below, I do not consider that I should deal with any part of the defendant's claim that these proceedings are an abuse of process until the Court of Appeal has determined this issue in the plaintiff's application for leave to appeal for the other publication.

Abuse of process

As noted during the argument, I accept the defendant's submission that I should not determine any issues in relation to abuse of process until the Court of Appeal's determination of leave to appeal from my judgment in relation to the first publication.

Concluding remarks

As I have struck out and dismissed the proceedings in relation to the limitation argument, this raises the question of whether it is necessary for the defendant to seek to reserve rights to argue the s 23 and abuse of process claims in the event of a successful appeal from the limitation argument. I do not think it is in the parties' interests to come back and argue these issues after the Court of Appeal has determined whether my judgment on abuse of process for the first publication should stand. The best solution in my opinion is that, if my findings on the limitation argument are set aside on appeal, part of that appeal's content would be for the defendant to cross-appeal my findings (which would have to be done in any event if Mr Smartt wants to challenge Carey v Australian Broadcasting Corporation).
Costs must follow the event. I note Mr Smartt's request to argue that costs should be determined pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) and have granted the parties liberty to apply.

Orders: 1. The defendant's application that these proceedings be struck out by reason of having been brought outside the limitation period (s 56A(2) of the Limitation Act 1969 (NSW)) is granted. 2. These proceedings are struck out and dismissed. 3. The plaintiff is to pay the defendant's costs of these proceedings, with liberty to apply on all costs issues including the bringing of an application for costs to be determined by a gross sum costs order. 4. Exhibits retained until further order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 November 2023

Defamation Act 1974(NSW)

At a glance

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Judgment (19 paragraphs)

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Legislation Cited (8)

Cases Cited (33)