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Byrne v Hamilton (No. 2)

Byrne v Hamilton (No. 2)

Case [2018] NSWDC 335 14 November 2018

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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

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…

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 Byrne v Hamilton (No. 2)

Details

AGLC: Byrne v Hamilton (No. 2) [2018] NSWDC 335
Case: [2018] NSWDC 335
Decision Date: 14 November 2018

CaseChat Overview and Summary

In the case of Byrne v Hamilton (No. 2), the plaintiff sought damages for defamation arising from anonymous letters distributed to residences. The defendant initially denied the publication but later admitted it, asserting that the action was time-barred. The Supreme Court of New South Wales was tasked with determining whether the plaintiff's application to amend the statement of claim and extend the limitation period should be granted.

The legal issues before the court were whether the plaintiff could amend the statement of claim to include an extension of the limitation period under s 56A of the Limitation Act 1969 (NSW) and whether the defendant's defence that the action was time-barred should be dismissed. The court needed to consider whether the requirements for extending the limitation period were met, specifically whether the plaintiff could demonstrate that it was not reasonable to institute the proceedings within the original limitation period.

The court found that the plaintiff had satisfied the "not reasonable" test. The plaintiff had acted promptly once they were aware of the defamation and the identity of the defendant. The court held that there was no issue of principle that would prevent the amendment and extension of the limitation period. The court granted the plaintiff's application to amend the statement of claim and extend the limitation period, and ordered that the limitation period for the cause of action be extended accordingly. The court also ordered the defendant to pay the plaintiff's costs of the notice of motion and hearing. The matter was stood over to the Defamation List for further proceedings.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Byrne v Hamilton (No. 2) [2018] NSWDC 335

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 15 of 15 shown

Schlaepfer v Australian Securities and Investments Commission
[2017] NSWSC 47 Para 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 unawar…
Evertz v Report Card Pty Ltd
[2016] NSWSC 1298 Para 25

…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…
Clark v Ibrahim
[2014] VSC 30 Para 25

…ample, 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 nam…
Casley v Australian Broadcasting Corporation
[2013] VSCA 182 Para 22

…The court’s role in determining the factual issues is explained in Casley v Australian Broadcasting Corporation [2013] VSCA 182 at [54]:…
Marshall v Megna
[2013] NSWCA 30 Para 12

…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…
Cassar v Network Ten Pty Ltd
[2012] NSWSC 680 Para 23

…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:…
Carey v Australian Broadcasting Corporation
[2012] NSWCA 176 Para 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,…
Ritson v Gay & Lesbian Community Publishing Ltd & Ors
[2012] NSWSC 483 Para 24

…g 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].””…
Han v Australian Kung Fu (Wu Shu) Federation Inc
[2011] VSC 498 Para 24

…rbour 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 t…
Wookey v Quigley (No 2)
[2010] WASC 209 Para 24

…lso 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 pl…
Carey v Australian Broadcasting Corporation
[2010] NSWSC 709

…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…
Ahmed v Harbour Radio Pty Ltd
[2010] NSWSC 676 Para 24

…e 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…
Rayney v State of Western Australia (No 3)
[2010] WASC 83 Para 41

…ed 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 […
Noonan v MacLennan
[2010] QCA 50

…ntiff 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 Pt…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27 Para 14

…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.…

Legislation cited in this decision · 3

Civil Procedure Act 2005 (NSW)
56, 58, 64 4 mentions (from Para 13)
Limitation Act 1969 (NSW)
14B, 56A 3 mentions (from Para 2)
Uniform Civil Procedure Rules 2005 (NSW)
21.7 2 mentions (from Para 17)

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