Alex v Australian Broadcasting Corporation - [2015] NSWDC 78

District Court

New South Wales

Medium Neutral Citation: Alex v Australian Broadcasting Corporation [2015] NSWDC 78
Hearing dates: 26 May 2015
Date of orders: 26 May 2015
Decision date: 26 May 2015
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Pursuant to r 12.11(e) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) the order made on 20 February 2015 extending the time for service of the Statement of Claim is discharged.
(2) Pursuant to r 12.11(b) of the UCPR the service of the Statement of Claim on the defendants on 4 March 2015 is set aside.
(3) Proceedings dismissed.
(4) The plaintiff is to pay the first defendant’s costs of the proceedings and additionally such travel or other disbursements as are assessed to be payable to the second defendant.

Catchwords: PRACTICE AND PROCEDURE – application to discharge an order extending time for service of the statement of claim where the limitation period was about to expire – provision of inaccurate and misleading information in support of the application – whether the order extending time should be discharged – whether the whole, or only part, of the claim should consequentially be dismissed by reason of expiry of the limitation period – pleading failed to identify which parts of the claim fall within the time period prior to the limitation period - proceedings dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-62 and 63
Defamation Act 2005 (NSW), s 23
Limitation Act 1969 (NSW), s 14B
Uniform Civil Procedure Rules 2005 (NSW), rr 6.2 and 12.11
Cases Cited: Agricultural & Rural Finance Pty Ltd v Kirk [2011] NSWCA 67
Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104
Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734
Coren v Master Builders Association of Australia [2014] NSWCA 244
Crux - Southern Cross University Post Graduate Association Inc v Watts [2013] NSWDC 254
Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
Fernance v Nominal Defendant (1989) 17 NSWLR 710
Flanagan v Urban Publishing Pty Ltd [2012] NSWDC 238
Foley v Rosier [2014] NSWDC 92
Hoskins v Van Den Braak (1998) 43 NSWLR 290
Hunter v Hanson [2014] NSWCA 263
In re Chittenden [1970] 3 All ER 562
Jingalong Pty Ltd v Todd [2014] NSWCA 330
Jones v TCN Channel Nine Pty Ltd (1992) 26 NSWLR 732
Onefone Australia Pty Ltd v One.Tel Ltd; Weston v Publishing Broadcasting Ltd [2007] NSWSC 1320
Pelechowski v Registar of Court of Appeal (1999) 198 CLR 435
Rust v Barnes [1980] 2 NSWLR 726
Sleeman v Tuloch Pty Ltd [2013] NSWDC 43
Webb v Bloch (1928) 41 CLR 331
Weston v Publishing & Broadcasting Ltd [2009] NSWSC 321
Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liq) v Publishing & Broadcasting Ltd (2012) 88 ACSR 80
White v Sparks [2015] NSWDC 53
Category: Principal judgment
Parties: Plaintiff: George…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWDC 78
Decision Date: 26 May 2015

CaseChat Overview and Summary

Alex sought to discharge an order extending the time for service of the statement of claim in proceedings against the Australian Broadcasting Corporation and two of its employees. The dispute arose from an application made by Alex to extend the time for service of the statement of claim, as the limitation period was about to expire. The primary legal issues were whether the order extending time should be discharged due to the provision of inaccurate and misleading information, and if so, whether the whole or only part of the claim should be dismissed by reason of the expiry of the limitation period.

The court found that the application to extend time was supported by inaccurate and misleading information, leading to the conclusion that the order should be discharged. Furthermore, the pleading failed to identify which parts of the claim fell within the time period prior to the limitation period. Consequently, the court set aside the service of the statement of claim and dismissed the proceedings.

The court's orders included discharging the order extending the time for service of the statement of claim, setting aside the service of the statement of claim, and dismissing the proceedings. Additionally, the plaintiff was ordered to pay the first defendant's costs of the proceedings and such travel or other disbursements as are assessed to be payable to the second defendant.

Orders

Orders of the court

(1) Pursuant to r 12.11(e) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) the order made on 20 February 2015 extending the time for service of the Statement of Claim is discharged.

(2) Pursuant to r 12.11(b) of the UCPR the service of the Statement of Claim on the defendants on 4 March 2015 is set aside.

(3) Proceedings dismissed.

(4) The plaintiff is to pay the first defendant’s costs of the proceedings and additionally such travel or other disbursements as are assessed to be payable to the second defendant.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Alex v Australian Broadcasting Corporation [2015] NSWDC 78
Hearing dates:	26 May 2015
Date of orders:	26 May 2015
Decision date:	26 May 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Pursuant to r 12.11(e) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) the order made on 20 February 2015 extending the time for service of the Statement of Claim is discharged. (2) Pursuant to r 12.11(b) of the UCPR the service of the Statement of Claim on the defendants on 4 March 2015 is set aside. (3) Proceedings dismissed. (4) The plaintiff is to pay the first defendant’s costs of the proceedings and additionally such travel or other disbursements as are assessed to be payable to the second defendant.
Catchwords:	PRACTICE AND PROCEDURE – application to discharge an order extending time for service of the statement of claim where the limitation period was about to expire – provision of inaccurate and misleading information in support of the application – whether the order extending time should be discharged – whether the whole, or only part, of the claim should consequentially be dismissed by reason of expiry of the limitation period – pleading failed to identify which parts of the claim fall within the time period prior to the limitation period - proceedings dismissed
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56-62 and 63 Defamation Act 2005 (NSW), s 23 Limitation Act 1969 (NSW), s 14B Uniform Civil Procedure Rules 2005 (NSW), rr 6.2 and 12.11
Cases Cited:	Agricultural & Rural Finance Pty Ltd v Kirk [2011] NSWCA 67 Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 Coren v Master Builders Association of Australia [2014] NSWCA 244 Crux - Southern Cross University Post Graduate Association Inc v Watts [2013] NSWDC 254 Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 Fernance v Nominal Defendant (1989) 17 NSWLR 710 Flanagan v Urban Publishing Pty Ltd [2012] NSWDC 238 Foley v Rosier [2014] NSWDC 92 Hoskins v Van Den Braak (1998) 43 NSWLR 290 Hunter v Hanson [2014] NSWCA 263 In re Chittenden [1970] 3 All ER 562 Jingalong Pty Ltd v Todd [2014] NSWCA 330 Jones v TCN Channel Nine Pty Ltd (1992) 26 NSWLR 732 Onefone Australia Pty Ltd v One.Tel Ltd; Weston v Publishing Broadcasting Ltd [2007] NSWSC 1320 Pelechowski v Registar of Court of Appeal (1999) 198 CLR 435 Rust v Barnes [1980] 2 NSWLR 726 Sleeman v Tuloch Pty Ltd [2013] NSWDC 43 Webb v Bloch (1928) 41 CLR 331 Weston v Publishing & Broadcasting Ltd [2009] NSWSC 321 Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liq) v Publishing & Broadcasting Ltd (2012) 88 ACSR 80 White v Sparks [2015] NSWDC 53
Category:	Principal judgment
Parties:	Plaintiff: George…