Carr v Reynolds Porter Chamberlain - [2007] NSWSC 21

CITATION: Carr v Reynolds Porter Chamberlain [2007] NSWSC 21

HEARING DATE(S): 16 November 2006, 30 January 2007

JUDGMENT DATE :
30 January 2007

JURISDICTION: Common Law Division
Defamation List

JUDGMENT OF: Studdert J

DECISION: On the application by RPC filed 2 June 2006: (1) The application is dismissed; (2) The plaintiff, Malcolm Douglas Carr, is to pay the costs of RPC incurred in relation to the application up to and including 16 November 2006. The application by Malcolm Douglas Carr under the Limitation Act: (1) Order that time for commencing proceedings based on the publication of the matters complained of that occurred on 6 October 2004 and 10 October 2004 to Minter Ellison is extended to 11 April 2006; (2) Order that the plaintiff pay the costs of RPC on the plaintiff's application for the extension of time.

LEGISLATION CITED: Limitation Act, s 56A

CASES CITED: Jameel v Dow Jones & Co. Inc. (2005) QB 946

PARTIES: Malcolm Douglas Carr (Plaintiff)
Timothy Richard Anderson t/as Reynolds Porter Chamberlain (Defendants)

FILE NUMBER(S): SC 20121/06

COUNSEL: T. Molomby SC/ Q. Nguyen (Plaintiff)
Dr M.J. Collins (Defendants)

SOLICITORS: R.D. Black & Associates (Plaintiff)
Minter Ellison (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

STUDDERT J

Tuesday 30 January 2007

20121/06 MALCOLM DOUGLAS CARR v TIMOTHY RICHARD ANDERSON t/as REYNOLDS PORTER CHAMBERLAIN
JUDGMENT

1 HIS HONOUR: There were two applications listed for hearing before the Court yesterday:

(i) the application of the plaintiff in the cause, Malcolm Douglas Carr, pursuant to the Limitation Act ;

2 Both applications came before the Court on 16 November 2006 and were adjourned on that date after the plaintiff sought leave to amend the statement of claim so as to limit his proceedings to publications in Australia and New Zealand.

3 It is appropriate now to deal discretely with the applications.

The application by RPC for a stay of proceedings

4 When this application was commenced the statement of claim relied upon publications by RPC in its newsletter in the United Kingdom as well as in New South Wales and New Zealand. There was evidence placed before the Court of 615 downloads in the United Kingdom and only seven downloads in New South Wales and one download in New Zealand. Of the downloads in New South Wales, proceedings arising from a number of them would have been statute barred.

5 The hearing of the application by RPC commenced with RPC relying upon affidavit evidence to prove the places of publication and it was contended that this court was a forum non conveniens. Dr Collins submitted that any proceedings arising from the case note published by it should be brought in the United Kingdom. After the luncheon adjournment on 16 November 2006 Mr Molomby of Senior Counsel, appearing for the plaintiff in the cause, made…

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 Carr v Reynolds Porter Chamberlain

Details

AGLC: Carr v Reynolds Porter Chamberlain [2007] NSWSC 21
Case: [2007] NSWSC 21
Decision Date: 30 January 2007

CaseChat Overview and Summary

In this case, Malcolm Douglas Carr initiated proceedings against Timothy Richard Anderson trading as Reynolds Porter Chamberlain (RPC), seeking relief for defamation. The dispute involved publications made by RPC, including some in the United Kingdom, New South Wales, and New Zealand. The court had to address two main applications: one by RPC seeking a stay of proceedings and another by Carr seeking an extension of the limitation period under the Limitation Act. The court first addressed the application by RPC for a stay of proceedings, which was based on the argument that most publications occurred in the United Kingdom, making New South Wales an inappropriate forum. The plaintiff subsequently amended the statement of claim to limit the scope of the proceedings to Australia and New Zealand, leading RPC to withdraw its application. However, RPC argued that the plaintiff should bear the costs incurred up to the amendment. The court found that the plaintiff should pay the costs incurred by RPC on its application up to and including 16 November 2006.

The second application involved the plaintiff seeking an extension of the limitation period under the Limitation Act for certain publications. The relevant publications were those made to Minter Ellison on 6 October 2004 and 10 October 2004, as the plaintiff only became aware of these publications in October 2005. The court considered whether it was just and reasonable to extend the limitation period for these specific publications, as the plaintiff had not been aware of them until later. The defendants did not oppose the application for these specific publications, and the court concluded that it was just and reasonable to grant the extension for the identified publications. However, the plaintiff was ordered to pay the costs of RPC for the Limitation Act application.

Orders