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 Alex
First Defendant: Australian Broadcasting Corporation
Second Defendant: Brian Fitzpatrick

Representation:

Counsel:
Plaintiff: Mr M Rollinson
First Defendant: Mrs L Barnett
Second Defendant: Mr B Fitzpatrick (in person)

Solicitors:
Plaintiff: Oliveri Attorneys
First Defendant: Banki Haddock Fiora
Second Defendant: Self-Represented

File Number(s):

2015/20902

Publication restriction:

None

Judgment

The application before the court

1. The first defendant seeks the following orders:

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 first defendant on 4 March 2015 is set aside.

3. The proceedings against the first defendant be dismissed.

4. The plaintiff is to pay the first defendant’s costs of the proceedings.

2. The second defendant, who is self-represented, supports the application made by the first defendant.

3. The nature of the plaintiff’s claims, and the circumstances in which his solicitor obtained the extension of time for service which is now challenged, are as follows.

The plaintiff’s claim for defamation

4. In 2014 Mr Alex brought three defamation actions in the District Court of New South Wales: Alex v Fairfax Media Publications Pty Ltd (2014/47901); Alex v Whittaker (2014/47902); and Alex v Goodsir (2014/73486). Banki Haddock Fiora is the firm of solicitors on record in those proceedings, which were the subject of a series of directions during 2014, including a referral to mediation on 22 December 2014.

5. Although those three proceedings were commenced shortly after the date of publication, Mr Alex did not commence any action in relation to the “7.30 Report” programme (broadcast by the first defendant on 28 January 2014) until 22 January 2015, less than a week prior to the expiry of the limitation period for the first matter complained of (unlike the second matter complained of, the website publication, which includes publication up to the present day).

6. The reason for Mr Alex’s delay in filing the statement of claim until just before the limitation period expiry is unexplained. The opening words of the ABC broadcast are that this is a “special 7.30/Fairfax Media investigation”. The statement of claim was clearly drafted in 2014, as the typed “2014” case number on the first page had to be crossed out by the Registry staff when it was filed on 22 January 2015.

7. The claim against the second defendant, who was merely interviewed as part of the broadcast, is infelicitously drafted. A claim can only be brought against him for his contribution to the broadcast, rather than for the whole of the programme, and continued failure to rectify this defect may warrant dismissal of the claim on this basis alone: Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101. Additionally, while liability for publication is a broad concept (Webb v Bloch (1928) 41 CLR 331), his responsibility for the ongoing publication of the matter complained of on the first defendant’s website is not identified in the pleadings. Nor are dates given for the downloadings of the second matter complained of provided, which makes it difficult to determine whether those downloadings fall within the permissible period for limitation purposes. These defects in pleading are matters of some relevance to his application before the court.

The extension of time for service

8. The first return date of these proceedings was at 9.30 am on 20 February 2015. When the matter was called, Mr Hajje, who appeared for the plaintiff, informed the court:

“HAJJE: I don't know if I've got an opponent here, I did ring Mr Senior's office this morning who appears for the defendants.

HER HONOUR: It was filed on 22 January, they may be slowly coming out of holiday mode‑‑

HAJJE: He and I have been speaking in the matter, I don't know whether there's a problem with his office, he didn't realise it was on because I called him, he wasn't in this morning and they didn't know if anyone was coming down.  In any event, your Honour, I need to bring you up to speed with what's occurring.

HER HONOUR: Yes.

HAJJE: I came into the matter very late last year, an appearance was actually filed at the last directions hearing.

HER HONOUR: Actually, I have to tell you this.  This is a new statement of claim, these are proceedings that were commenced on‑‑

HAJJE: There was a direction made on 22 December, I understand, in relation to pre‑existing matters.

HER HONOUR: There were directions made for them to go to mediation.

HAJJE: Correct.

HER HONOUR: That's all I did.

HAJJE: Could I just hand these orders up, they're actually from your associate, and if your Honour would disregard the markings at the top of the page.

HER HONOUR: The only one I've got today is Alex v ABC, but that could well be because the other files are down with mediation.  Matter listed for further directions ‑ but that's not the ABC one; that's the other ones.  That's because you should all be off at mediation.

HAJJE: Yes.  I'm here under the apprehension that we're here for the original matters, not the new ABC matter.

HER HONOUR: Maybe something has gone wrong in the registry.  The three Alex matters should be here but aren't, and this matter is the statement of claim that was filed on 22 January.  This is actually ‑ you can see if it's got a return date.

HAJJE: Despite the fact I have filed copies of the statement of claim you're referring to, for some reason the case numbers don't appear on here, they do have the Court seal.

HER HONOUR: The [one] I've got today ‑ 15/20902.  This is the new one, so are any orders being sought in the new one?

HAJJE: Not at this stage because they haven't been served yet, we're still trying to get them served.

HER HONOUR: This one is in today, you filed it on 22 January.  When were you planning on serving it, because you're right on the cusp of the one month period?

HAJJE: I understand that, your Honour, we're trying to hunt down the second defendant at the moment.

HER HONOUR: How about I extend time.

HAJJE: I'd appreciate that.

DISCUSSION AS TO SUITABLE DATES

HER HONOUR: I will extend time for service to two weeks and put it down to Thursday 12 March at 2 o'clock before me.”

9. Mr Hajje went on to ask if he could take a date for mediation in these matters, which further reinforced my impression that not only were these matters all connected (given their common subject matter), with the same firm of solicitors acting for all defendants, but also that he had discussed all these issues with Mr Senior.

10. Both defendants were served on 4 March 2015, in accordance with this order. When the matter next came before the court on 12 March 2015 Mr McAvaney appeared for the first defendant. There was still no appearance for the second defendant, and I asked if an affidavit of service was available, to which Mr Hajje replied “I’ll ensure I’m armed with the plaintiff’s service [sic] at the next appearance”. The reason for my concern was the obviously wrong pleading of the claim of liability for the whole programme against him.

11. I then made the following orders:

1. Matter stood over for further directions to Thursday 26 March 2015 at 2:00pm.

2. Direct the plaintiff to notify the second defendant of the adjourned date.

12. On 18 March 2015, the first defendant filed two documents. The first of these was an Appearance and the second was a Notice of Intention to Elect Trial by Jury in Defamation Proceedings signed by Leanne Norman, the solicitor on record for the first defendant.

13. When the matter came before me on 26 March 2015, the first defendant made an application pursuant to r 12.11(b) and (e) Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) to set aside and/or discharge the order extending time for service, dismiss the proceedings against the first defendant and for costs. That application was supported by the second defendant, Mr Fitzpatrick, who appeared in person. I stood the application over to Thursday 16 April 2015. I once again referred to the inadequate pleading of the case against the second defendant and handed the parties a copy of Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101.

14. On 15 April 2015 the first defendant provided an outline of submissions and an affidavit of Mr Timothy Senior sworn 15 April 2015. That affidavit attached the transcript of the directions hearing on 20 February 2015 and replied to it as follows:

“14. A transcript of the hearing is annexed hereto and marked with the letter “A”.

15. I note from the transcript that Mr Hajje informed the Court that:

a. he had called my office that morning; and

b. he and I had been speaking about this matter.

16. I do not recall and have no record of receiving a missed call from Mr Hajje on 20 February 2015.

17. I had no knowledge of these proceedings as at 20 February 2015.

18. I had previously spoken to Mr Hajje about separate proceedings that the plaintiff had brought against Fairfax Media Publications Pty Ltd (2014/47901), an employee of Fairfax (2014/47902) and employees of Nationwide News Pty Ltd (2014/73486), in which BHF acts for the defendants.

19. I had not previously spoken to Mr Hajje about these proceedings.”

15. Mr Hajje swore an affidavit in reply on 30 April 2015, and also withdrew as the solicitor for the plaintiff in these proceedings. He states on oath that he was confused about what matters were listed, and agrees he had never spoken to Mr Senior about these proceedings at all, let alone notified him, or his office, of the return date. This means that I was given the following wrong information:

1. Contrary to Mr Hajje’s statements in court on 20 February 2015, his client’s other defamation proceedings should not have been in the list at all. The 20 February 2015 date was the first return date for the proceedings arising from the “7.30 Report” and no other proceedings brought by Mr Alex should have been listed. When I had endeavoured to point this out to Mr Hajje on 20 February, he interrupted me and continued to speak about the other three matters that he considered should have been in the list. The clear inference was that I, or the registry, had incorrectly failed to list the other matters in accordance with the 22 December 2014 orders, which he handed up to me to demonstrate my error. Mr Hajje conveyed the inference that not only had the defendants let him down by their incompetence, but so had the court. As the three other files had been in mediation, I assumed that some order following mediation had accidentally not been processed. Mr Hajje should have known that no such orders had been made, and that the other proceedings were not before the court on 20 February 2015.

2. He had never spoken to Mr Senior about “the matter” (i.e. these proceedings) at all. He had only spoken to Mr Senior about the three matters commenced in 2014, which were not before the court on 20 February 2015. This is completely contrary to the statements Mr Hajje made to the court.

3. Mr Hajje has provided a copy of his phone call out records showing that on 20 February 2015 at 9:24am, 6 minutes prior to the 9:30am Defamation List, for a two minute call to Banki Haddock Fiora. He says that he did not leave a message at the time as he was informed that Mr Senior was not in. That is not, however, what Mr Hajje told me on 20 February 2015. He went on to say not only that Mr Senior was not in, but that “there's a problem with his office, he didn't realise it was on” and “they didn't know if anyone was coming down”. He also sought a mediation date. This goes well beyond telephoning to see if Mr Senior was in and leaving no message, as opposed to advising that a matter was in court, asking where Mr Senior was and being told that he was not in, that others in the office did not realise the case was on and “they didn't know if anyone was coming down”.

16. My order was made after Mr Hajje told me he understood that time for service was about to expire, and that he was “trying to hunt down the second defendant at the moment”. As is set out in more detail below, both defendants were easy to locate.

17. At the time of making the order, it was unclear to me whether one or both of the defendants had to be served. A party may be aware of proceedings being on foot without the claim having been formally served: Agricultural & Rural Finance Pty Ltd v Kirk [2011] NSWCA 67 at [123]. Mr Hajje spoke of an expected appearance by Mr Senior (whom I knew had appeared in the other three actions) and as to his having knowledge of the proceedings. He spoke of having to serve the second defendant (whose address on the pleading was given as c/- the first defendant) personally, which suggested some discussion between them about personally serving him.

18. Believing that Mr Senior was acting for both defendants, and knew about these proceedings and had discussed them with Mr Hajje, in circumstances where it was unclear whether one or both had to be served personally, I made a general order extending time for service. This was because the limitation period in relation to the first matter complained of had already expired and without an extension the statement of claim would have been stale. The consequences to a party of serving a stale writ where the limitation period had expired can be the loss of the whole of the action: Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liq) v Publishing & Broadcasting Ltd (2012) 88 ACSR 80. However, an application to extend time must be made on a proper basis. That was not the case here, and this is why this application has been brought.

Should the order to extend time be discharged?

19. A statement of claim is valid for service for a period of only one month after the date upon which it is filed: UCPR r 6.2(4)(b)(ii). The statement of claim would be stale when it was served upon the defendants unless it could be served prior to expiry of the one month period following 22 January.

20. Orders of this kind are generally made ex parte. This is why, pursuant to UCPR r 12.11, an application may be made for such an order to be discharged or set aside:

“12.11 Setting aside originating process etc

(1) In any proceedings, the court may make any of the following orders on the application of a defendant:

(a) an order setting aside the originating process,

(b) an order setting aside the service of the originating process on the defendant,

(c) an order declaring that the originating process has not been duly served on the defendant,

(d) an order discharging:

(i) any order giving leave to serve the originating process outside New South Wales, or

(ii) any order confirming service of the originating process outside New South Wales,

(e) an order discharging any order extending the validity for service of the originating process,

(f) an order protecting or releasing:

(i) property seized, or threatened with seizure, in the proceedings, or

(ii) property subject to an order restraining its disposal or in relation to which such an order is sought,

(g) an order declaring that the court has no jurisdiction over the defendant in respect of the subject-matter of the proceedings,

(h) an order declining to exercise jurisdiction in the proceedings,

(i) an order granting such other relief as the court thinks appropriate.

(2) Such an order may not be made unless notice of motion to apply for the order is filed by the defendant within the time limited for the defendant to enter an appearance in the proceedings.

(3) Notice of motion under subrule (2):

(a) may be filed without entering an appearance, and

(b) must bear a note stating the applicant’s address for service.

(4) The making of an application for an order under subrule (1) does not constitute submission to the jurisdiction of the court.”

21. The obligation of a party to provide “good reason” to make the extension sought is explained by Barrett J in Weston v Publishing & Broadcasting Ltd [2009] NSWSC 321 and in Onefone Australia Pty Ltd v One.Tel Ltd; Weston v Publishing Broadcasting Ltd [2007] NSWSC 1320 at [3], for the reasons his Honour goes on to explain at [9]-[12]. It is a test with a low bar. The defendants do not submit that the extension should not have been granted on the facts as put before me on 20 February 2015; they ask me to exercise my discretion afresh, having regard to the additional information they put before me, which they submit shows the true position of the facts.

22. UCPR r 12.11 invests the court with a discretion to discharge such an order. That results in a hearing de novo, where the court is asked to determine afresh, on evidence presented at the later hearing as to the state of affairs at the earlier time, as to whether the service period should have been extended, and in this regard it is for the plaintiff to satisfy the court that an order should have been made at the relevant time: Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 at [14]. The nature of the discretion is explained by McColl JA in Hunter v Hanson [2014] NSWCA 263 at [57].

21. Mr Rollinson submitted that the onus lay on the moving party, and not on his client. I do not accept that submission, which is contrary to the express wording of UCPR r 12.11 as well as to the explanation of the rule in Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) at [14].

22. This brings me to the relevant factors to determine in the hearing de novo of the application to extend time for service.

The checklist under r 12.11(1)(e)

25. The applicable principles have been set out by Sackville AJA in Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liq) v Publishing & Broadcasting Ltd at [20] as follows:

“[20] The principles governing the exercise of the power conferred by r 12.11(1)(e) of the UCPR can be summarised as follows:

(1) The principles relevant to an application to extend time for service under r 1.12 also apply to a motion pursuant to r 12.11(1)(e) to discharge orders for extension: Kirk, at [58], per Tobias JA (with whom Macfarlan JA and Sackville AJA agreed).

(2) In exercising the discretion conferred by r 12.11(1)(e), the court should consider:

“the attempts that have been made at service, the length of the delay, the reasons for the delay, whether the delay was deliberate, whether notice was given to the defendant, the conduct of the parties generally and the hardship or prejudice caused to the plaintiff by [discharging the orders] or to the defendant [by refusing to discharge the order].”

Buzzle (at [43]) per Ipp JA (with whom Tobias and McColl JJA agreed) cited with approval in Kirk (at [94]);

(3) The discretion is to be exercised in the context of, and by reference to, the statute by which it is conferred: Buzzle, at [28]. Consequently, in New South Wales, ss 56–59 of the Civil Procedure Act 2005 (the CP Act) require a judge exercising the discretion to have regard to whether the relevant party has:

(a) diligently pursued the object of disposing of the proceedings in a timely way;

(b) used, or could reasonably have used, available opportunities under the rules or otherwise, to avoid delay; and

(c) reasonably implemented the practice and procedure of the court with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination: Buzzle, at [36].

(4) The court must take into account the policy considerations underlying the relevant limitations statute. Thus, defendants or potential defendants should be made aware of claims against them within a reasonable time and liquidators who do not commence proceedings until just before expiry of the limitation period should be especially diligent in pursuing prompt service: Buzzle, at [37]–[39]; cited with approval in Kirk, at [98]–[99].

(5) It is for the court and not one of the litigants to determine whether there should effectively be a stay of proceedings. Accordingly, it is generally:

“inappropriate to allow an extension of time for the service of a … statement of claim where a significant cause of the delay has been the willingness of the plaintiff to do nothing about service while awaiting a decision from a litigation funder as to whether or not to provide the necessary funds. Were that to be regarded as a good reason to extend time, the Court would be allowing plaintiffs to arrogate to non-parties the right to decide the period by which the time for service of a writ should be extended. That would be fundamentally in conflict with the Court’s duty to exercise, alone, the discretion conferred upon it.”

Buzzle, at [82] cited with approval in Kirk, at [101].

(6) Ordinarily, it is not a good reason for delay that a plaintiff wishes to hold up proceedings while some other case is tried: Buzzle, at [90]. However, this is not an inflexible rule: Kirk, at [102].

(7) If a defendant knows that claims have been made against him or her and understands the nature of the claims that have been made, that may mitigate the prejudice the defendant might otherwise suffer by reason of a delay in service: Kirk, at [123].”

26. I shall deal with each of the matters set out in the checklist as follows:

1. Attempts made at service;

2. Length of delay;

3. Reasons for the delay;

4. Whether the delay was deliberate;

5. Whether notice was given to the defendant;

6. The conduct of the parties generally;

7. Hardship or prejudice;

8. The Limitation Act issue;

9. Policy considerations underlying the Defamation Act.

(a) Attempts made at service

27. Mr Hajje deposes, in paragraph 4 of his affidavit, that after the statement of claim was filed on 22 January 2015, his client arranged for “a person” to collect them for service. He took no further steps. Then, “sometime in early to mid-February, I was advised by my client as to some difficulty in locating the second defendant.”

28. No information is provided as to why the first defendant was not served. Service on the first defendant could have been effected by ordinary prepaid post. There is no evidence of any prior attempts to do so.

29. The second defendant was easy to locate. Mr Senior deposes (affidavit, paragraph 33) to the second defendant residing for the last 6 – 7 years in a property he owns jointly with his daughter, and attaches a copy of the relevant electoral roll entry for him. There is no evidence as to why the plaintiff’s servant or agent was having “some difficulty” finding the second defendant, such as evidence of looking in the telephone book, or online, or on Australia Lookup, or even of his asking Mr Senior.

30. The plaintiff does not provide any further evidence as to why these documents could not have been served during the period from 22 January to 20 February 2015.

31. I am not satisfied, having regard to the paucity of evidence, that any attempts were made by Mr Alex, or his servant or agent, to locate or serve either of the defendants.

(b) Length of delay

32. The delay in question was a matter of 11 days. The extension was granted before the statement of claim became stale, and the statement of claim was served on both defendants by the date given in the extension. This is a very insignificant period of delay.

33. In Hunter v Hanson the statement of claim was not served for 17 months after the limitation period expired on 5 February 2011. Despite that lengthy delay, the orders made for extension of time were upheld. In the present case, there was one application for extension of time from 20 February 2015 to 4 March 2015, which was complied with. These are factors strongly militating in favour of granting an extension.

34. However, the explanation for the delay in Hunter v Hanson, unlike the delay in these proceedings, was explained. The plaintiff’s asserted wish to await a decision of the Court of Appeal and his concerns for his personal safety at the hands of the defendants were sufficient grounds for the court to uphold the decision of the first instance judge. That is not the case here.

(c) Reasons for the delay

35. Mr Hajje’s affidavit gives no reasons for the delay beyond the reference to “some difficulty” in serving the second defendant, an explanation I have found to be wholly insufficient.

36. Mr Hajje was clearly aware of the obligation to serve within the time allotted for service, as he acknowledged this problem to the court when he appeared on 20 February 2015.

37. Mr Rollinson submitted that the delay, and the failure to explain the reasons for delay to me, were due to the incompetence of Mr Hajje, and that the plaintiff should not be punished for the incompetence of his legal representatives. I do not accept that submission. Mr Hajje provided the statements of claim to be served to Mr Alex’s unnamed servant or agent on 22 January 2015. He knew, and acknowledged to the court, that the statements of claim had to be served within a month. While he wrongly told the court he thought the other three matters were before the court when in fact these proceedings were listed, that is irrelevant to the issue of attending to service in accordance with the time period specified under UCPR r 6.2(4)(b)(ii).

(d) Whether the delay was deliberate

38. There is no evidence that the delay was deliberate. However, this may be because there is no evidence at all.

(e) Whether notice was given to the defendant

39. It is not in dispute that no notice was given to the defendants.

(f) The conduct of the parties generally

40. When considering the conduct of the parties, Mr Rollinson submits that I should take into account the fact that Mr Hajje’s negligence should not be visited on his client, that the defendants continued to conduct the case despite the service issue, and that it was by no means clear that the second defendant was in fact making any application at all.

41. As to the first point, I am satisfied that the failure to serve the defendants is that of the plaintiff himself. He took charge of the service of the statement of claim, not Mr Hajje. He has only himself to blame. Mr Hajje’s misstatements to me on 20 February 2015 do not reflect well on his competence or professionalism, but their only relevance to this issue is that they led me to make an order extending time that I would not otherwise have made.

42. As to the second point, s 63 Civil Procedure Act 2005 (NSW) encapsulates a principle which used to be referred to as the ‘fresh step’ rule, which requires a party observing an irregularity in the conduct of proceedings by an opponent to take the point promptly, rather than store it up as ammunition for a later date. Complaints about service to be raised in reliance upon these principles include:

1. Where the originating process was not served within the period provided for in r 6.2(4) and the limitation period had subsequently expired: Rust v Barnes [1980] 2 NSWLR 726; In re Chittenden [1970] 3 All ER 562; and

2. Where an amended pleading has been neither filed nor served within the limitation period: Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734; Fernance v Nominal Defendant (1989) 17 NSWLR 710.

43. Section 63(4) contains two cumulative requirements, the first being that the complaint is taken within a reasonable time, and the second that it is taken before taking a fresh step.

44. Mrs Barnett, relying upon Jingalong Pty Ltd v Todd [2014] NSWCA 330, submits that s 63 does not apply because the court is not being asked to exercise the power conferred by s 63(3) to which the “fresh step” rule applies, and that there is no irregularity of the kind dealt with in s 63, in that the proceedings were served within the time allowed.

45. Section 63 applies generally to circumstances where valid orders are made by the court, such as the entry of judgment where a party has not been served (Hoskins v Van Den Braak (1998) 43 NSWLR 290), as well as where proceedings are beyond power (Pelechowski v Registar of Court of Appeal (1999) 198 CLR 435 at 445). Section 63(3)(a) gives the court the power to set aside such an order even though it appears regular on its face.

46. However, it is clear from the correspondence that the defendants did take the point at the first opportunity, in that the obtaining of the 20 February 2015 order was challenged in correspondence and foreshadowed even before the relevant transcript was obtained.

47. As to the plaintiff’s submission that the second defendant has not joined in the application, he has attended court for the avowed purpose of supporting the application of the first defendant. Mr Senior has provided affidavit material on his behalf. He is a litigant in person, and should not be required to file affidavits or make submissions where this can be done on his behalf by the first defendant. This submission is without merit.

(g) Hardship or prejudice

48. Mr Rollinson submits, and I agree, that the loss of the first matter complained of (and such period in relation to the second matter complained of as falls outside the limitation period) will be a significant hardship for the plaintiff. Any application for an extension of time is acknowledged to be hopeless, having regard to the policy behind the Act. I have dealt with this in more detail below.

49. The defendants do not point to specific issues of prejudice beyond presumptive prejudice.

(h) The Limitation Act issue

50. The defendants submit that the whole of the action set out statement of claim would have been statute barred under s 14B Limitation Act 1969 (NSW) and that accordingly the proceedings should be struck out.

51. This is a fundamental error by the first defendant. There is no “single publication” rule in Australia, either under the repealed legislation (Jones v TCN Channel Nine Pty Ltd (1992) 26 NSWLR 732) or under the current legislation (Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575). The continuing nature of the publication on the website would permit the plaintiff, if these proceedings are struck out, to commence fresh proceedings in relation to that portion of the second matter complained of which has been published and downloaded during the twelve month period prior to the filing of the relevant statement of claim.

52. This brings me to the question of the policy considerations underlying the Defamation Act 2005 (NSW).

(i) Policy considerations underlying the Defamation Act

53. In Hunter v Hanson at [113] Emmett JA, albeit in dissent, stated:

“A plaintiff who does not commence proceedings until just before expiry of the limitation period should be especially diligent in pursuing prompt service. An important aspect of the public policy behind the limitation period is that a potential defendant should be made aware of claims against him within a reasonable time. Delay in service is particularly serious if it occurs after the expiration of the limitation period (see Tolcher v Gordon [2005] NSWCA 153 at [3]).”

54. Emmett JA went on to explain, at [116]:

“As a matter of public policy, the limitation period for defamation is significantly shorter than for other causes of action. However, provision is made for extending the limitation period in limited circumstances. Thus, under s 56A of the Limitation Act, a person claiming to have a cause of action for defamation may apply for an order extending the limitation period for the cause of action. Under that provision, a court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the date of the publication, extend the limitation period mentioned in s 14B to a period of up to three years, running from the date of the publication. A court may not order an extension of the limitation period other than in the circumstances just described.”

55. The public policy issues underlying the uniform legislation take into account a wide number of factors, including the evanescent nature of mass media publications (especially broadcasts), the cost and complexity of defamation proceedings, the absence of insurance and the potential for abuse of process from “stop writs” commenced with purposes other than the vindication of reputation.

56. With the greatest respect to the majority decision in Hunter v Hanson, Emmett JA’s explanation of the policies underlying the uniform legislation should be given very great weight. Failure to serve the opposing party with the initiating proceedings in defamation actions brought at the end of, or outside, the limitation period has been observed and commented upon in a series of decisions of this court: see, for example, Crux - Southern Cross University Post Graduate Association Inc v Watts [2013] NSWDC 254; Foley v Rosier [2014] NSWDC 92 at [22]; White v Sparks [2015] NSWDC 53. Sometimes the failure to serve a party is not picked up until the matter is set down for hearing; in Sleeman v Tuloch Pty Ltd [2013] NSWDC 43 two of the five defendants were unaware of the proceedings having even been commenced, let alone that the hearing date was imminent, and in Flanagan v Urban Publishing Pty Ltd [2012] NSWDC 238 the hearing date had to be vacated. In none of these cases was the failure to serve warranted; in most, it was not even explained.

57. Out of all the failures to take steps in litigation, such as failure to comply with timetables, failure to serve the initiating statement of claim is the least pardonable. What possible excuse can there be for not notifying an easily locatable defendant that defamation proceedings have been commenced? Appellate courts have not hesitated to penalise plaintiffs for delays of even a few days in compliance with the obligation to attend court (Coren v Master Builders Association of Australia [2014] NSWCA 244) or comply with timetables, and there is no reason why a similarly strict view is not at least equally appropriate for failure to serve a defendant. While there may be some excuse for a busy solicitor to overlook compliance with a timetable, failure to serve a defendant in accordance with the relevant rules undermines the principles upon which ss 56 – 62 of the Civil Procedure Act are based.

Conclusions

58. There is no explanation of the failure to serve the defendants in accordance with the Rules, apart from the reference to “some difficulty” in locating the second defendant. The plaintiff himself is responsible for this failure. The plaintiff has accordingly failed to discharge his onus under UCPR r 12.11 and the order of 20 February should be discharged.

59. Additionally, given the failure to discharge the onus, the proceedings should be dismissed. While the plaintiff will suffer the prejudice of loss of the claim set out in the first matter complained of, the policy considerations underlying the uniform legislation and the Civil Procedure Act 2005 (NSW) must be given their due weight. The integrity of the litigation process, and particularly the limitation and service rules which play such a vital part in ensuring the fairness of that process, must be preserved. I am satisfied that the orders sought by the defendants should be made.

60. I next note my reasons for refusing an additional submission made by Mr Rollinson that only the time-barred portion of the claim should be struck out.

Should the whole claim be struck out?

61. Mrs Barnett asks me to dismiss the whole of the proceedings. Mr Rollinson asks me to rescue that part of the second matter complained of which falls within the period not proscribed by limitation provisions, although without identifying the precise dates in question. Neither party addressed questions of whether leave to under s 23 would be required if fresh proceedings are commenced.

62. As to the action against the first defendant, it is not possible for me to identify, by reason of the failure to plead the dates of downloading, whether any person read the second matter complained of during the time within the limitation period. Thus it is uncertain whether, if I were to sever the salvageable part of the second matter complained of, any of the four named persons would have accessed the publication during the relevant time period. In those circumstances, the whole of the claim must be struck out. It is up to the plaintiff to determine whether to recommence proceedings for the publication currently online.

63. As to the action against the second defendant, not only does the same difficulty apply, but the plea of liability for the whole of the second matter complained of is misconceived: Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101. While I will not strike the claim out on that basis, in that argument has not proceeded on this point, it renders the task of determining what portion of the second matter complained of against the second defendant is salvageable almost impossible.

64. In the circumstances, the whole of the proceedings should be dismissed.

Costs

65. Costs should follow the event. The second defendant is a litigant in person and is not entitled to any orders in his favour for costs, but has been put to the cost of attending court on each of the occasions since the claim was served upon him. I have included a provision to enable the costs assessor to assess such disbursements.

Orders

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.

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