Brott v FGD Pty Ltd - [2018] VSC 182

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2018 00063

ISSAC ALEXANDER BROTT	Plaintiff
v
FGD PTY LIMITED T/as FARRAR GESINI & DUNN (ABN 44 075 255 006) & ORS (according to the attached schedule)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	9 April 2018
DATE OF JUDGMENT:	24 April 2018
CASE MAY BE CITED AS:	Brott v FGD Pty Ltd and Ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 182

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LIMITATION OF ACTIONS – Defamation – Application by the first and second defendants (‘defendants’) for summary judgment against the plaintiff in reliance on s 5(1AAA) of the Limitation of Actions Act 1958 (Vic) (‘Act’) – Application by the plaintiff for an extension of time under s 23B of the Act – Plaintiff alleged defendants had defamed him by preparing or contributing to a letter sent by an accounting firm to the ATO – Plaintiff’s solicitors sent a ‘concerns’ notice as defined in s 14(2) of the Defamation Act 2005 (Vic) to the accounting firm one day prior to the expiry of the applicable one year limitation period – Whether plaintiff established that it was not reasonable to have commenced the proceeding within one year of the date of publication – Consideration of whether certain factors complained of by the plaintiff amounted to it being ‘not reasonable’ to bring the proceeding within time – Plaintiff’s application dismissed – Any extension of time granted would not have exceeded one month – Defendants’ application granted – Casley v Australian Broadcasting Corporation [2013] VSC 251, referred to – Johnston v Holland (No 2) [2017] VSC 597, referred to

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M D Tehan	Efron & Associates
For the First and Second Defendants	Mr M Goldblatt	Minter Ellison

HER HONOUR:

This proceeding was issued on 10 January 2018 by the plaintiff, Mr Issac Brott, alleging that the defendants defamed him by preparing or contributing to a letter sent by a firm of accountants, PKF, to the Australian Taxation Office (‘ATO’) on 4 August 2016 (‘PKF letter’). It is not necessary for the purposes of the current application to go into any detail as to the alleged defamation: rather, the wider context is of greater significance. The PKF letter was sent to the ATO on the instructions of Mr Brott’s former de facto partner, Ms Natalie McAra. Since approximately October 2013, Mr Brott and Ms McAra have been engaged in a Family Court proceeding concerning the distribution of the asset pool of the relationship (‘Family Court proceeding’). The first defendant in this proceeding is the firm of solicitors acting on Ms McAra’s behalf in the Family Court proceeding, Farrar Gesini Dunn (‘FGD’). The second defendant is the solicitor with FGD with primary carriage of the Family Court proceeding on behalf of Ms McAra, and the third defendant (who has not been served), is a barrister engaged by FGD on Ms McAra’s behalf in the…

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.

Continue reading Brott v FGD Pty Ltd

Details

AGLC: Brott v FGD Pty Ltd [2018] VSC 182
Case: [2018] VSC 182
Decision Date: 24 April 2018

CaseChat Overview and Summary

Brott brought an action against FGD Pty Ltd and two individuals, alleging defamation arising from a letter sent to the ATO by an accounting firm. The defendants applied for summary judgment under section 5(1AAA) of the Limitation of Actions Act 1958 (Vic), arguing that the proceedings were statute-barred. Brott opposed the application, seeking an extension of time under section 23B of the Act. The central legal issues were whether Brott established that it was not reasonable to have commenced the proceeding within the one-year limitation period, and if certain factors alleged by Brott justified an extension of time.

The court considered the factors relied upon by Brott, including his belief that the accounting firm would not pursue the matter and the absence of any communication from the firm. The court noted that these factors did not, on their own or in combination, establish that it was not reasonable for Brott to commence the proceeding within the limitation period. The court found that Brott's actions, including the delay in instructing his solicitors to send the ‘concerns’ notice, demonstrated that it was reasonable for him to have commenced the proceeding within the time limit. The court concluded that any extension of time granted would not have exceeded one month, and therefore Brott's application for an extension of time was dismissed.

In light of the dismissal of Brott's application, the court granted the defendants' application for summary judgment. The court found that the proceeding was statute-barred and that Brott had not established a sufficient basis for an extension of time. The decision was influenced by previous cases such as Casley v Australian Broadcasting Corporation and Johnston v Holland (No 2).

Orders