Byrne v Hamilton (No. 2)

[2018] NSWDC 335

District Court

New South Wales

Medium Neutral Citation:	Byrne v Hamilton (No. 2) [2018] NSWDC 335
Hearing dates:	11 October 2018
Date of orders:	14 November 2018
Decision date:	14 November 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The plaintiff’s Notice of Motion filed 13 September 2018 is granted. (2) The plaintiff has leave to file a Further Amended Statement of Claim in the form served on 13 September 2018. (3) Pursuant to s 56A of the Limitation Act 1969 (NSW) the limitation period for the cause of action pleaded in paragraph 1 of the Further Amended Statement of Claim is extended to 11 August 2017. (4) Pursuant to s 56A of the Limitation Act 1969 (NSW) the limitation period for the cause of action pleaded in paragraphs 2A and 2B of the Further Amended Statement of Claim is extended to the date upon which the leave sought in order 1 is granted plus 1 day. (5) The defendant is to pay the plaintiff’s costs of the notice of motion and hearing. (6) Matter stood over to the Defamation List on Thursday 22 November 2018.
Catchwords:	TORT – defamation – limitation – application to amend statement of claim and extend limitation period – plaintiff brings proceedings for anonymous letters placed in letterboxes – defence initially denies publication but then pleads that he published outside the limitation period – requirements of “not reasonable” test satisfied – no issue of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 58 and 64 Limitation Act 1969 (NSW), ss 14B and 56A Uniform Civil Procedure Rules 2005 (NSW), r 21.7
Cases Cited:	Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Carey v Australian Broadcasting Corporation (2012) 290 ALR 348 Casley v Australian Broadcasting Corporation [2013] VSCA 182 Cassar v Network Ten Pty Limited [2012] NSWSC 680 Clark v Ibrahim [2014] VSC 30 Evertz v Report Card Pty Ltd [2016] NSWSC 1298 Han v The Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498 Marshall v Megna; Megna v Tory; Tory v Megna [2013] NSWCA 30 Schlaepfer v Australian Securities and Investments Commission [2017] NSWSC 47 Wookey v Quigley (No 2) [2010] WASC 209
Category:	Procedural and other rulings
Parties:	Plaintiff: Nicholas John Byrne Defendant: Garry Patrick Hamilton
Representation:	Counsel: Plaintiff: Ms L Barnett Defendant: Mr B Goldsmith (solicitor)   Solicitors: Plaintiff: Mercantile Legal Services Defendant: Goldsmiths Lawyers
File Number(s):	2017/244754
Publication restriction:	None

Judgment

1. The plaintiff commenced proceedings for defamation on 11 August 2017 following the publication of an anonymous letter placed in his mother’s letterbox and, it later transpired, the letterboxes of some of her neighbours. The defendant initially denied publication but, after what appears to have been an earlier draft of the matter complained of was obtained on discovery, now admits that he was the author. The difficulty for the plaintiff is that the defendant now asserts that he published the matter complained of on a date outside the limitation period.

2. By notice of motion filed on 13 September 2018, the plaintiff seeks the following orders:

1. The plaintiff be granted leave to file a Further Amended Statement of Claim in the form served on 13 September 2018.

2. Pursuant to s 56A of the Limitation Act 1969 (NSW) the limitation period for the cause of action pleaded in paragraph 1 of the Further Amended Statement of Claim is extended to 11 August 2017.

3. Pursuant to s 56A of the Limitation Act 1969 (NSW) the limitation period for the cause of action pleaded in paragraphs 2A and 2B of the Further Amended Statement of Claim is extended to the date upon which the leave sought in order 1 is granted plus 1 day.

4. Costs.

5. Such further or other order as the Court thinks fit.

3. The defendant opposes the application.

How the new claim fits into the existing cause of action

4. Paragraphs 1 and 2A as pleaded in the Further Amended Statement of Claim are as follows:

“1. On a date unknown to the plaintiff but in or about the period 26 July 2016 to September 2016, the defendant published material of and concerning the plaintiff as set out in the schedule A to this Statement of Claim (the first matter complained of).

Particulars

(a) The first matter complained of was a letter purportedly written to the plaintiff’s mother and was published to a number of the plaintiff’s mother’s neighbours, including the persons who reside at 2, 3, 5, 6, 7, 8, and 9 Lobelia Street Chatswood NSW, the number and identities of which the plaintiff is currently unaware, by a copy being sent to each neighbour by post or alternatively placed in their mail box. The plaintiff is presently unaware of any additional recipients of the first matter complained of.

(b) The plaintiff relies upon the grapevine effect.

(c) Further particulars of publication will be provided following discovery and/or interrogatories.

…

2A. On or about 28 July 2016, the defendant published material of and concerning the plaintiff as set out in schedule B to this Statement of Claim (the second matter complained of).

Particulars

The second matter complained of was published to the residents of 27, 34 and 38 Wyuna Road, West Pymble NSW by it being delivered to them.

2B. The second matter complained of, in its natural and ordinary meaning conveyed the following imputations, each of which imputations was defamatory of the plaintiff:

(a) The plaintiff was actively avoiding being served with legal process (the whole of the second matter complained of but in particular paragraphs 1 to 3).

(b) The plaintiff borrowed $100,000 from the defendant for the purpose of an investment but instead spent that money by taking his wife and son to Noosa for a 3-4 [sic] holiday after receiving the money (the whole of the second matter complained of but in particular paragraphs 4 and 5).

(c) The plaintiff has scammed money off a 69 year old pensioner who is unwell and destitute (the whole of the second matter complained of but in particular paragraphs 6 and 7).

(d) The plaintiff is a scammer (the whole of the second matter complained of but in particular paragraph 7).

(e) The plaintiff is a deceitful liar (the whole of the second matter complained of but in particular paragraph 7).

(f) The plaintiff threatened the defendant that he could have ex SAS officers hurt or kill the defendant (the whole of the second matter complained of but in particular paragraph 9).

…”

5. The plaintiff relies upon the affidavit of Nicholas John Byrne affirmed 13 September 2018 (“the Byrne Affidavit”).

6. In the Defence filed on 21 February 2018, the defendant pleads in paragraph 1:

“1. In answer to paragraph 1 of the amended statement of claim, the defendant denies the matters alleged therein.”

7. The Amended Defence filed on 31 May 2018 similarly pleads a denial as set out in the earlier Defence.

8. In the Further Amended Defence filed in court on 23 August 2018, which pleads to the Amended Statement of Claim (and not the Further Amended Statement of Claim) provides in paragraph 1:

“1. In answer to paragraph 1 of the amended statement of claim, the defendant:

A. Admits that he wrote the matter complained of.

B. Admits that the matter complained of was of and concerning the plaintiff.

C. Admits that the matter complained of was purportedly written to the plaintiff’s mother.

D. Says that he sent the matter complained of to the plaintiff’s mother and the persons referred to in paragraph 1E below on 27 or 28 July 2016.

E. Says that he sent copies of the matter complained of to the residents of 3 properties, being, as best as the defendant can recall, 3, 5 and 7 Lobelia Street, all in Chatswood.

F. Says that the action herein is not maintainable by virtue of section 14B Limitation Act 1969.

G. Otherwise denies the matters alleged therein.”

The plaintiff’s evidence

9. The plaintiff, who was not required for cross-examination, explained the circumstances in which he came to learn of the matter complained of and to commence proceedings were as follows:

“3. On or about 13 September 2016 I received a telephone call from my mother, Moya Byrne (my “Mother”), with words to the following effect:

My Mother: “The Taylors have shown me a letter they have received making all sorts of accusations about you. It says that a copy has been sent to all of our neighbours. I don’t know who else has received it but it is highly embarrassing. It doesn’t say who it’s from though the person obviously doesn’t know anything about our family.”

Me: “Can you read it to me?”

4. Jan and Peter Taylor reside at 3 Lobelia Street, Chatswood.

5. At the time of that conversation I was at LAX in Los Angeles, USA waiting to collect my luggage after a flight. A copy of a note I made of the call with my mother is annexed and marked “B” (the redacted portion of the note relates to unrelated matters). The second note on that page relates to a telephone call I received from my brother.

6. Prior to receiving the call from my mother as set out in paragraph 3 above I had no knowledge of the existence of or contents of the Lobelia Street Letter, or the fact that it had been published.

7. From 13 September 2016 I have always believed and understood (and still believe and understand) that the publication of the Lobelia Street Letter occurred in about September 2016. On that basis at all material times I believed and understood that I had until about September 2017 to commence proceedings for defamation against the defendant.

8. On 11 August 2017 I commenced these proceedings seeking damages in relation to the publication of the Lobelia Street Letter.

9. If I was aware that the limitation period in relation to the Lobelia Street Letter expired in about late July 2017 (which I do not accept) I would have commenced these proceedings prior to the expiry of that date.”

10. The plaintiff accordingly commenced proceedings within one year of the publication coming to his mother’s attention.

11. If the evidence of the plaintiff and his mother is accepted, publication occurred in or about early to mid-September 2016. However, the defence gives the date of the letter being placed in the letter box as late July 2016 and the limitation period is accordingly pleaded.

12. It would be possible (and indeed sensible) for this application to be determined at the trial, where the court has the benefit of hearing the evidence of the parties. Whenever the anonymous letter was placed in the plaintiff’s mother’s letter box, there could be no publication until a third party had read it (Marshall v Megna; Megna v Tory; Tory v Megna [2013] NSWCA 30 at [329], [330]), and much will turn on the evidence at the trial in relation to this issue. However, Mr Goldsmith opposed the hearing of the application to extend time being deferred to the hearing and, as the application is before me for that purpose, I accordingly have proceeded to hear it.

The relevant statutory provisions

13. The Court’s power to grant leave to amend a pleading is provided by s 64 Civil Procedure Act 2005 (NSW), which provides that, subject to s 58 (which requires the Court to follow the dictates of justice):

“all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings”.

14. The overriding purpose as set out in s 56 is generally construed in accordance with the principles set out in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.

15. In her helpful written submissions, Ms Barnett states that the effect of the amendments proposed in the Further Amended Statement of Claim is as follows:

1. They provide additional particulars of publication of the first matter complained of (see the amendments marked up to paragraph 1 as set out above);

2. They add a new cause of action in paragraphs 2A and 2B and a minor amendment to paragraph 4; and

3. They include definitional amendments based upon the above.

16. The principal amendment is the addition of the new cause of action in paragraphs 2A and 2B (“the Wyuna Road Letter”). The plaintiff’s explanation as to why that cause of action was not included in the Statement of Claim earlier is one commonly advanced on limitation applications, namely that he was not aware of the publication (as stated in [11]-[13] of his affidavit). This assertion is not challenged.

17. Ms Barnett points out that the plaintiff would be at liberty to commence new proceedings in relation to Wyuna Road Letter (assuming he was also granted leave pursuant to r 21.7 Uniform Civil Procedure Rules 2005 (NSW) to use the Wyuna Road Letter for a purpose other than the conduct of these proceedings). However, having multiple proceedings on foot, in relation to similar issues, is not in anyone’s interests, and particularly not the Court’s. Addition of this claim to these proceedings is sought to avoid the inconvenience of multiple proceedings.

18. Although Mr Goldsmith opposes the application, he has restricted his submissions to reliance upon the assertion that, on his client’s pleadings, the first matter complained of is statute barred. Although publication is not admitted, the similarity between the matter complained of already sued on and the Wyuna Road Letter is obvious.

19. There is considerable convenience in permitting the addition of this claim to these proceedings. The same issues arise, discovery and interrogatories in relation to the Wyuna Road Letter have already been given and the same parties are involved.

The application to extend time

20. Section 14B of the Limitation Act 1969 (NSW) provides:

“14B Defamation

An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.”

21. A cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of. Section 56A(2) provides the Court with the power to extend the limitation period, subject to the “not reasonable” test:

“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 1 year from the date of the publication, extend the limitation period mentioned in section 14B to a period of up to 3 years running from the date of the publication.”

22. The court’s role in determining the factual issues is explained in Casley v Australian Broadcasting Corporation [2013] VSCA 182 at [54]:

“The first observation is that the task is to determine if the statutory test is satisfied. That is to say, in the circumstances was it not reasonable for the applicant to have commenced an action within the period of one year from the date of publication. The concentration is upon the circumstances of the particular case. While it is understandable that on occasions judges have essayed an attempt to identify circumstances in which an applicant might satisfy the test, the danger thus introduced is that the example or analogy may come to be treated as in the nature of a gloss on the legislation.”

23. The test is generally agreed to be a high one: Carey v Australian Broadcasting Corporation (2012) 290 ALR 348 at [55], [61]. It does not involve the consideration of any prejudice to a defendant, does not confer a discretion and does not direct attention to whether it was reasonable not to have commenced proceedings, but instead requires the court to be satisfied it was not reasonable to have commenced an action within one year from the date of publication of the defamatory matter. Hislop J summarised the law with respect to s 56A in Cassar v Network Ten Pty Limited [2012] NSWSC 680 at [16] as follows:

““It has been held in respect of s 56A (or its equivalent in other States) that:

(a) the burden that must be discharged is to establish 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 — Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537; Rayney v Western Australia (No 3) [2010] WASC 83 at [41];

(b) the onus rests with the plaintiff — Rayney [41], Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676; Carey v Australian Broadcasting Corporation [2010] NSWSC 709; (2010) 77 NSWLR 136 at [45];

(c) the test is objective — Noonan [20], Carey [48];

(d) it is a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances — Rayney [41];

(e) if the plaintiff proves the fact then the court is obliged to extend time. Extension in these circumstances is mandatory — Ahmed [28], Carey [45];

(f) section 56A limits the period of extension to an extension “of up to three years running from the date of publication”. This has been described as involving the exercise of a discretion in the sense of involving a normative judgment — Ritson v Gay and Lesbian Community Publishing Ltd [2012] NSWSC 483 at [24], [25].””

24. However, three is a well-recognised reason for extension arises where the plaintiff is unaware of relevant factors concerning the publication within the relevant period, as Simpson J noted in Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [52]; see also Cassar v Network Ten Pty Limited at [19], Han v The Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498 at [24] and Wookey v Quigley (No 2) [2010] WASC 209 at [58]. That is effectively what the plaintiff claims here, by reason of the unusual nature of the matter complained of being an anonymous letter placed in letter boxes in the area of Sydney in which his mother lives.

25. Applications of this kind tend to turn on their facts. In Schlaepfer v Australian Securities and Investments Commission [2017] NSWSC 47 Garling J was satisfied that it was not reasonable for the plaintiffs to have commenced defamation proceedings within the limitation period in circumstances where they were unaware of the publications (see [94]-[97]). Parties are expected to take appropriate steps such as pre-trial discovery in order to ascertain who the anonymous author is (see, for example, Evertz v Report Card Pty Ltd [2016] NSWSC 1298) where the publication is able to be discovered, such as posts on the internet: Clark v Ibrahim [2014] VSC 30 (plaintiffs aware of anonymous posts on the internet); Cassar v Network Ten Pty Ltd (the plaintiff discovered publication when he googled his own name).

26. However, the nature of anonymous letters in the post boxes of neighbours of the plaintiff’s mother would not be readily discoverable in the same way as an internet post. In addition, the plaintiff in these proceedings has been proactive. He commenced proceedings within time in relation to the publication drawn to his attention on 13 September 2016.

27. In addition, most unusually for an application of this nature, the defendant denied publication in the first two versions of his defence. I consider that a denial of publication in a verified pleading is a strong factor in enabling an applicant for extension of time to succeed.

28. Mr Goldsmith submits that if leave is granted, his client will be deprived of a significant advantage at the trial and will have to consider pleading justification. That would result in a lengthy trial, which would be contrary to the overriding principles set out in s 56 Civil Procedure Act 2005 (NSW).

29. These are not factors of relevance to an application such as the present, where discretionary factors play no part on the “not reasonable” test (even if these were sufficiently relevant, which I do not accept).

30. Taking all of the above factors into account, I am satisfied that the plaintiff should be granted the extension of time sought as well as leave to amend the statement of claim conformably with the draft dated 13 September 2018.

Costs

31. Although the granting of an extension of time is generally seen as an indulgence, the circumstances of this case are unusual, for the reasons set out above. Costs should follow the event.

Orders

1. The plaintiff’s Notice of Motion filed 13 September 2018 is granted.

2. The plaintiff has leave to file a Further Amended Statement of Claim in the form served on 13 September 2018.

3. Pursuant to s 56A of the Limitation Act 1969 (NSW) the limitation period for the cause of action pleaded in paragraph 1 of the Further Amended Statement of Claim is extended to 11 August 2017.

4. Pursuant to s 56A of the Limitation Act 1969 (NSW) the limitation period for the cause of action pleaded in paragraphs 2A and 2B of the Further Amended Statement of Claim is extended to the date upon which the leave sought in order 1 is granted plus 1 day.

5. The defendant is to pay the plaintiff’s costs of the notice of motion and hearing.

6. Matter stood over to the Defamation List on Thursday 22 November 2018.

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