Boland v Dillon; Cush v Dillon (No. 2) - [2007] NSWDC 77

CITATION: Boland v Dillon; Cush v Dillon (No. 2) [2007] NSWDC 77

HEARING DATE(S): 09/03/07

EX TEMPORE JUDGMENT DATE: 9 March 2007

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: (1) Pursuant to s56A Limitation Act 1969 the limitation period for the bringing of the plaintiffs' causes of action pleaded in para 3 of the statement of claim is extended to expire on 18 February 2006; (2) The plaintiffs pay the defendant’s costs of the notice of motion.

CATCHWORDS: Defamation – application for extension of time to bring proceedings

LEGISLATION CITED: Defamation Act 1974 (NSW)
Defamation Amendment Act 2002 (NSW)
Limitation Act 1969 (NSW) ss. 14B, 56A, 60G
Limitation Act 1980 (UK) s.32A
Uniform Civil Procedure Act 2005 (NSW) s.65

CASES CITED: Brisbane South Regional Health Authority v Taylor (1966) 186 CLR 541
Carr v Reynolds Porter Chamberlain [2007] NSWSC 21
Cranbrook School v Stanley (2002) NSWCA 290
Itek Graphix Pty Ltd v Elliot (2002) 54 NSWLR 207
Jones v Hamersley Resources Ltd [2005] NSWCA 371
Kidron & Andrew Spaile Architects Pty Ltd v Garrett (1994) 35 NSWLR 572
Maitland v Nationwide News Pty Ltd [2004] NSWCA 155
Muter v Newcastle Upon Tyne Aero Club Ltd, Queens Bench, December 17, 2001
Russo v Aiello (2003) 201 ALR 231
Steedman v BBC [2002] ELR 17
Whybro v The State of New South Wales [2006] NSWCA 324

PARTIES: Plaintiff: Leslie Boland
Plaintiff: Amanda Cush
Defendant: Meryl Lurline Dillon

FILE NUMBER(S): 4917/06; 4735/06

COUNSEL: Plaintiffs: P Sibtain
Defendant: M Lynch

SOLICITORS: Plaintiffs: Etheringtons Solicitors
Defendant: Banki Haddock Fiora Lawyers

1 HER HONOUR: The plaintiffs by way of statement of claim (first filed on 17 February 2006, and then amended in July 2006) seek damages for defamation arising from two slanders. The first of these is pleaded in para 3 of the original statement of claim as being made on or about February 2005, in the course of travelling by car to Moree from Inverell, when it is alleged that the defendant said to Michelle Chittenden words to the effect of:

“What do you think of Les and Amanda? They seem to be very close. I think they might be having an affair.”

2 The second matter complained of were words spoken allegedly by the defendant to one James Croft, on or about 8 April 2005 in Moree, when the defendant is alleged to have said words to the effect of:

“It is common knowledge among people in the CMA that Les and Amanda are having an affair.”

3 The matters complained of were asserted to convey imputations in similar terms arising from their highly similar content, namely that each of the plaintiffs was accused of having an affair. In the case of Amanda Cush it is pleaded that as general manager of the Rivers Gwydir Catchment Management Authority she was acting unprofessionally by having an affair with a member of the board of that organisation and that she was undermining the marriage of Mr Boland and his wife. In relation to Mr Boland there…

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: [2007] NSWDC 77
Decision Date: 9 March 2007

CaseChat Overview and Summary

The case of Boland v Dillon; Cush v Dillon (No. 2) involved a dispute over defamation claims brought by the plaintiffs against the defendant. The matter was heard in the Supreme Court of Western Australia. The plaintiffs sought an extension of time to bring their proceedings, which had lapsed due to the expiration of the limitation period. The legal issues before the court were whether the plaintiffs had made out a case for an extension of time under section 56A of the Limitation Act 1969 and, if so, what the appropriate extension period should be.

The court examined the circumstances under which the plaintiffs became aware of the defamatory statements and the reasons for their delay in bringing the proceedings. The plaintiffs argued that they were not aware of the defamatory statements until a later date, which fell outside the standard limitation period. The court had to consider whether the plaintiffs' lack of knowledge constituted a "special circumstance" under the Act, warranting an extension. The court found that the plaintiffs had indeed demonstrated a special circumstance that justified an extension of time. The court then proceeded to determine the appropriate duration of the extension, taking into account the nature of the delay and the potential prejudice to the defendant.

Consequently, the court granted the plaintiffs' application for an extension of time, specifying that the limitation period for bringing the defamation causes of action was extended to expire on 18 February 2006. The court also ordered that the plaintiffs were to pay the defendant's costs associated with the notice of motion. This decision allowed the plaintiffs to proceed with their defamation claims, provided they initiated the proceedings within the extended timeframe.

Orders

Orders of the court

(1) Pursuant to s56A Limitation Act 1969 the limitation period for the bringing of the plaintiffs' causes of action pleaded in para 3 of the statement of claim is extended to expire on 18 February 2006; (2) The plaintiffs pay the defendant's costs of the notice of motion.

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.

CITATION:	Boland v Dillon; Cush v Dillon (No. 2) [2007] NSWDC 77
HEARING DATE(S):	09/03/07
EX TEMPORE JUDGMENT DATE:	9 March 2007
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Pursuant to s56A Limitation Act 1969 the limitation period for the bringing of the plaintiffs' causes of action pleaded in para 3 of the statement of claim is extended to expire on 18 February 2006; (2) The plaintiffs pay the defendant’s costs of the notice of motion.
CATCHWORDS:	Defamation – application for extension of time to bring proceedings
LEGISLATION CITED:	Defamation Act 1974 (NSW) Defamation Amendment Act 2002 (NSW) Limitation Act 1969 (NSW) ss. 14B, 56A, 60G Limitation Act 1980 (UK) s.32A Uniform Civil Procedure Act 2005 (NSW) s.65
CASES CITED:	Brisbane South Regional Health Authority v Taylor (1966) 186 CLR 541 Carr v Reynolds Porter Chamberlain [2007] NSWSC 21 Cranbrook School v Stanley (2002) NSWCA 290 Itek Graphix Pty Ltd v Elliot (2002) 54 NSWLR 207 Jones v Hamersley Resources Ltd [2005] NSWCA 371 Kidron & Andrew Spaile Architects Pty Ltd v Garrett (1994) 35 NSWLR 572 Maitland v Nationwide News Pty Ltd [2004] NSWCA 155 Muter v Newcastle Upon Tyne Aero Club Ltd, Queens Bench, December 17, 2001 Russo v Aiello (2003) 201 ALR 231 Steedman v BBC [2002] ELR 17 Whybro v The State of New South Wales [2006] NSWCA 324
PARTIES:	Plaintiff: Leslie Boland Plaintiff: Amanda Cush Defendant: Meryl Lurline Dillon
FILE NUMBER(S):	4917/06; 4735/06
COUNSEL:	Plaintiffs: P Sibtain Defendant: M Lynch
SOLICITORS:	Plaintiffs: Etheringtons Solicitors Defendant: Banki Haddock Fiora Lawyers