Castafiore v Uniting Church in Australia Property Trust (NSW)

[2018] NSWDC 83

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Castafiore v Uniting Church in Australia Property Trust (NSW) [2018] NSWDC 83
Hearing dates:	5 April 2018
Date of orders:	05 April 2018
Decision date:	05 April 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) On the grounds that it is in the public interest because of the personal sensitivity of the subject matter and the potential for disclosure and publication of a child and young person’s name or identity to cause either of them and their family members undue stress and embarrassment within the meaning of section 8(1)(a) (in relation to the administration of justice) and 8(1)(e) (in relation to the public interest) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), it is ordered pursuant to that Act that: (a) The name of the plaintiff in these proceedings be known as the pseudonym “Bianca Castafiore”. (b) The name of the second defendant in these proceedings be known as the pseudonym “Tristan Bior”. (c) The names of the plaintiff’s children to remain unpublished. (d) The name of the plaintiff’s children’s father to remain unpublished. (2) Dismiss the plaintiff’s application to extend time for the following publications: (a) The student report dated 1 September 2016; (b) The first five publications identified as Annexures 1 to 5 to the affidavit of Deborah Lilley of 29 March 2018, namely: [redacted] (3) Strike out the plaintiff’s Statement of Claim in its original (11 January 2018) and amended (22 March 2018) form, but grant leave to the plaintiff to commence proceedings for defamation in relation to the document headed “Narrative – Risk ReAssessment” dated 24 February 2017 and “Client NCFAS G+R” dated 20 June 2017. (4) Pursuant to r 7.36 Uniform Civil Procedure Rules 2005 (NSW), refer the plaintiff to the registrar for referral to a barrister on the Pro Bono Panel specialising in Defamation for legal assistance including the drafting of an Amended Statement of Claim to identify the causes of action and imputations pleaded and such other assistance as the barrister and/or the registrar may deem necessary. (5) The Amended Statement of Claim is to be filed 21 days after the pleading has been settled by counsel. (6) Note no submissions have been made in relation to costs. (7) Matter stood over to the Defamation List on Thursday 31 May 2018 for further directions.
Catchwords:	LIMITATION ACT ss 14B, 56A – application by plaintiff for extension of time to commence proceedings for defamation for six publications – meaning of “not reasonable” in the circumstances to bring proceedings within the limitation period – application dismissed – amendments to pleadings – no issue of principle
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW), s 245G Court Suppression and Non-Publication Orders Act 2010 (NSW) Limitation Act 1969 (NSW), ss 14B and 56A Privacy and Personal Information Protection Act 1998 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 13.4 and 14.28
Cases Cited:	Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304 Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90 Cassar v Network Ten Pty Ltd [2012] NSWSC 680 Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498 Hunter v Hanson [2014] NSWCA 263 Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 Kaiser v George Laurens (NSW) Pty Ltd [1982] 1 NSWLR 294 Leech v Green & Gold Energy Pty Ltd [2011] NSWSC 999 Moran v Schwartz (No 3) [2015] WASC 215 Noonan v MacLennan [2010] QCA 50 Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 Piscioneri v Reardon [2015] ACTSC 61 Rayney v Western Australia (No 3) [2010] WASC 83 Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611 Snezana Angeleska (Known As Slaveska) v State of Victoria and Others (According To The Attached Schedule) [2015] VSCA 140 State Bank of New South Wales Ltd v Currabubula Holdings Pty Ltd (2001) 51 NSWLR 399 Wookey v Quigley (No 2) [2010] WASC 209
Category:	Procedural and other rulings
Parties:	Plaintiff: Bianca Castafiore First Defendant: Uniting Church in Australia Property Trust (NSW) Second Defendant: Tristan Bior
Representation:	Counsel: Plaintiff: In person Defendants: Mr R Potter   Solicitors: Plaintiff: In person Defendants: Meridian Lawyers
File Number(s):	2018/10813
Publication restriction:	Pseudonyms have been used in order to anonymise the children and parties

Judgment

1. These are my reasons for orders today in relation to the applications of both parties for rulings as follows:

1. The plaintiff’s application for an extension of the limitation period under s 14B Limitation Act 1969 (NSW) pursuant to s 56A of that same legislation.

2. The defendants’ application for summary dismissal on the basis of the deficiencies in the pleadings, and the applicability of the Limitation Act 1969 (NSW) to most if not all of the publications which appear to have been sued upon.

2. The matters complained of relate to documents created in circumstances relating to children, in circumstances where the Children and Young Persons (Care and Protection) Act1998 (NSW) is applicable. The defendants provided me with the text of appropriate orders to be made conformably with the Court Suppression and Non-Publication Orders Act 2010 (NSW) for the suppression of identification of any of the relevant persons and this judgment has been prepared in accordance with those orders.

The plaintiff’s claim for damages for defamation

3. The plaintiff, who has at all relevant times acted for herself, commenced proceedings by way of Statement of Claim filed on 11 January 2018. That claim is not felicitously drafted. Identification of the matters complained of is difficult to ascertain. There is a reference to only one publication, a report written on 1 September 2016 by a school welfare officer who is unconnected with either of the defendants, in circumstances where it is clear that the plaintiff wishes to bring proceedings in relation to other, more recent documents. The balance of the Statement of Claim sets out the plaintiff’s attempt to obtain further information under freedom of information legislation and claims under other legislation rather than identifying with precision the publications upon which she relies in her action for defamation.

4. An affidavit in support (which appears to function as an amended pleading as well) attaches what appear to be the matters complained of, which cast some illumination upon the causes of action.

5. Fortunately for the court, the defendants have provided the documents in question, in the form of attachments to the affidavit of Ms Lilley (the solicitor instructing Mr Potter), and the hearing was able to proceed on the basis of those documents being identified by the plaintiff as the publications upon which she intends to commence proceedings and, where required, to have leave to commence proceedings out of time.

The matters complained of

6. The first task was to ascertain exactly what publications the plaintiff was suing on. These were agreed to be as follows:

1. The Student Report dated 1 September 2016;

2. The first five publications identified as Annexures 1 to 5 to the affidavit of Deborah Lilley of 29 March 2018, namely:

1. [Redacted] Form dated 10 February 2016;

2. Documents headed “[redacted]” dated 14 April 2016;

3. Document headed “[redacted]” dated 29 June 2016;

4. Document headed “[redacted]” dated 22 August 2016; and

5. Document headed “[redacted]” dated 22 August 2016.

3. The document headed “Narrative – Risk ReAssessment” dated 24 February 2017; and

4. The document headed “Client NCFAS G+R” dated 20 June 2017.

7. I have only identified the last two of these documents by their actual names because all of the other publications identified above (except for (c) and (d), which fall within the 12 month period prior to the filing of the statement of claim) are caught by the limitation period. In view of my rulings concerning the first six of the publications, there is no need for further identification of thi material, all of which is caught by the Children and Young Persons (Care and Protection) Act1998 (NSW). I have made orders pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW) which limit the description of the remaining two documents in accordance with the orders sought by the defendants and consented to by the plaintiff.

The plaintiff’s application for an extension of time to commence proceedings

8. It is not in dispute that the plaintiff did not commence proceedings in time for the first six documents, all of which predate 10 January 2017. Section 14B 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.”

9. The limitation period may be extended in accordance with s 56A:

“56A Extension of limitation period by court

(1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action.

(2) 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.

(3) A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2).”

10. As Mr Potter notes in his helpful written submissions, the test is a difficult one to satisfy (Rayney v Western Australia (No 3) [2010] WASC 83 at [41] and Wookey v Quigley (No 2) [2010] WASC 209). The relevant principles were summarised by Hislop J in Cassar v Network Ten Pty Ltd [2012] NSWSC 680 at [18]-[23] as follows:

“[18] The defendant conceded at the hearing on 21 March 2012 that it did not dispute that the plaintiff did not have actual knowledge of the defendant’s broadcast prior to November 2011.

[19] It has been said that “unusual circumstances” may be present where the plaintiff is unaware of the publication within the period of one year from the publication having occurred — Rayney at [41], Ahmed [52], Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498 at [24], Ritson at [18], Wookey v Quigley (No 2) [2010] WASC 209 at [58]. The plaintiff relied upon those statements.

[20] However, the circumstances which justify an extension of time will depend on the facts of each particular case. In Wookey Kenneth Martin J said:

[82] The statutory policy underlying [14B] deliberately sets a short limitation period. This demands that parties and their advisers act timeously in respect of the narrow limitation window that is allowed …

[84] … the threshold imposed under [56A] to secure a extension of time is a high one …

[77] Where a person does not know the content of a publication to someone which they know exists, yet they suspect it may be defamatory of them, the person would ordinarily be expected to take prompt steps to obtain access to the publication, with a view to assessing whether the communication is defamatory or not …

[21] The defendant submitted that the plaintiff could only succeed if he could establish, objectively, that it was not reasonable in the circumstances for him to have commenced an action in relation to the matter complained of within one year from the date of the publication. This he had not done. The plaintiff knew that the matter was of significant interest to the media; that the defendant was interested in the story; he knew the defendant had only one side of the story; and he assumed the incident could have been on television. There was thus ample ground to suspect the defendant may have published material in respect of the assault which was defamatory of the plaintiff. If he had searched Google for his name as he did in November 2011 or had otherwise taken steps to inform himself he would have found the defendant’s publications about him.

[22] In my opinion, in the circumstances of the present case, the plaintiff or his lawyer would be expected to take prompt action to ascertain if the defendant had published material about the incident and if such material was defamatory. The plaintiff failed to do this. In my opinion, the plaintiff has not established that it was not reasonable in the circumstances for him to have commenced an action in relation to the matter complained of within one year from the date of the publication.

[23] Accordingly, the application to extend time is refused.”

11. Beazley JA further explained these principles in Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90 at [55]:

“[55] Her Honour, at [45], construed s 56A as imposing an onus on a plaintiff to satisfy the court that it was not reasonable in the circumstances for him or her to bring proceedings within the limitation period. Her Honour considered that s 56A did not involve the consideration of any prejudice to a defendant. Her Honour also held that s 56A did not confer a discretion. Rather, if the court was satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced the action within one year, the court was required to extend the period of time in which to bring proceedings: see Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676. The same construction has been given to equivalent provisions in other jurisdictions: see Murphy v Lewis [2009] QDC 37 at [11]–[14]; Noonan v MacLennan [2010] QCA 50; 2 Qd R 537 at [15]–[18] per Keane JA; at [30] per Holmes JA and at [48] and [58] per Chesterman JA; Rayney v Western Australia (No 3) [2010] WASC 83 at [41] per Martin CJ. I agree with this construction of s 56 A. The statutory test does not direct attention to whether it was reasonable not to have commenced proceedings. It 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. This view is consistent with the preferred view given to the section in Noonan v MacLennan.”

12. In Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304, McColl JA added, at [71]:

“[71] Consideration of whether the applicant for an extension of the limitation period has established the not reasonable test “must commence from the position that the [Limitation] Act lays down strict time limits for the commencement of proceedings for damages for defamation”, demonstrating that the legislature “has identified some public interest in the speedy commencement and determination of actions for defamation”. That public interest “should not be undermined by too ready an acceptance of circumstances that are said to have made it unreasonable to sue within the year.” Thus, it has been said that the not reasonable test is a difficult one to satisfy, requiring the applicant to demonstrate the failure to commence the defamation proceedings within the limitation period was the consequence of “relatively unusual”, “special” or “compelling” circumstances.” (Footnotes omitted)

13. A problem commonly encountered in applications of this kind is that the plaintiff may not know the actual content of publications, but knows of their existence in circumstances where they may suspect it could be defamatory. In those circumstances, as Kenneth Martin J notes in Wookey v Quigley (No 2) at [47], the plaintiff’s duty is “to take prompt steps to obtain access to the publication”. While Kenneth Martin J does not identify what steps should be taken, it is clear from decisions such as Noonan v MacLennan [2010] QCA 50 and Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 that those steps require the commencement of proceedings for defamation whether those documents are available for not. Merely asking for them under freedom of information legislation is, regrettably, insufficient.

14. In the present case, the plaintiff acknowledged she had obtained the first document in the above list in May 2017 and had been aware then of further publications of a similar nature, which she had set about obtaining. There had been some delay by the defendants in providing those documents, and she had not received them until November 2017. By that stage, the limitation period for all six of the publications the subject of this application had already expired.

15. This seems most unfair. Unfortunately, looking at the authorities on the extension of time in defamation actions, the steps a plaintiff should take where a defamatory publication exists, but where it cannot be obtained prior to the limitation period expiry, appear to be as follows:

1. The plaintiff may bring an application for pre-action discovery (Snezana Angeleska (Known As Slaveska) v State of Victoria and Others (According To The Attached Schedule) [2015] VSCA 140 at [119] – [126]; Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498 at [22]). However, this could be an expensive and time-consuming process, and one risk could be that the correct person might still not be identified before the limitation period expires.

2. The plaintiff can throw caution to the winds and commence proceedings in the hope of discovering further publications, either by an application for leave to administer interrogatories as to publication (Kaiser v George Laurens (NSW) Pty Ltd [1982] 1 NSWLR 294) or, if there is at least one publication to go on with, to bring further applications during the conduct of the proceedings: Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611. This would be an expensive course if the wrong defendants were sued but in circumstances such as the present would probably be the best way forward.

3. Although it may sound like a course which is contrary to natural justice, a plaintiff can commence proceedings and simply not serve the statement of claim on the defendants. In Hunter v Hanson [2014] NSWCA 263 at [72] the Court acknowledged that a plaintiff who feared to commence proceedings in case the publication was made on an occasion of absolute privilege was thereby facing the “high” test under s 56A if he failed to commence proceedings; a plaintiff in those circumstances was therefore “between Scylla and Charybdis”. The court held (by majority) that the course taken by the plaintiff of commencing proceedings but withholding service for one and a half years (rather than serving them within the one-month period to effect service) was entitled to do so. This would work well in the Victorian Supreme Court, where a plaintiff has up to a year to serve a statement of claim and can seek an extension for a second year; even where the time for service is only a month (as is the case in this court) the generosity with which time was extended in Hunter v Hanson is an indication of the court’s acknowledgment that such problems may exist. However, this method requires the court to continue to extend the time for service of the statement of claim, which not all courts may be prepared to do.

4. Wait until one or more of the defendants publish further material within time (preferably on the Internet). This would require a grant of leave under s 23 if previous proceedings had been commenced, but would not require leave if proceedings had not been commenced (Leech v Green & Gold Energy Pty Ltd [2011] NSWSC 999 at [8]). The defendant cannot be heard to complain about failure to bring prior proceedings: Moran v Schwartz (No 3) [2015] WASC 215 at [52] – [74].

16. This strict test is at odds with the impact of the multiple publication rule, but as the publications in question in these proceedings are not online publications, that is of no assistance to the plaintiff. She has taken none of the steps identified in the authorities as being necessary, and the test under s 56A (“not reasonable” to have commenced proceedings) must therefore be applied in all its rigour.

16. The plaintiff’s explanation that she had only become reinvolved in the parenting of her children in February 2017 and was shocked and concerned both by this development and by her discovery of the defamatory material is one for which the court has considerable sympathy, but is insufficient to discharge the onus. While there may have been some delay by the defendants in providing the information, unless that delay amounts to actual fraud (see Piscioneri v Reardon [2015] ACTSC 61), that is of no assistance to the plaintiff seeking an extension of time.

17. Although a degree of evaluative consideration of the facts has been afforded when considering the personal circumstances of a party, the plaintiff’s lack of knowledge of defamation law or of the limitation period is not a factor to which I can have any regard. Nor can I have any regard to the amount of personal upheaval and difficulty caused to the plaintiff by the changes in her life over the relevant period of time when, after a lengthy period of non-involvement in her children’s lives, she became actively involved in their parenting.

18. However, the plaintiff is still in time for the remaining two publications, namely the publications of 24 February 2017 and 20 June 2017. While the Statement of Claim (due largely to its pleading defects) must be struck out entirely, the plaintiff will be granted leave to file an Amended Statement of Claim pleading a cause of action and imputations arising from the two publications for which she is within time.

19. This brings me to a consideration of the challenge to the Statement of Claim made on behalf of the defendants, which is based largely upon the manifest errors of form and content in the pleadings to date.

Challenges to the pleadings

21. The original Statement of Claim included claims for the breach of the Privacy and Personal Information Protection Act 1998 (NSW) and Anti-Discrimination Act 1977 (NSW). The plaintiff has now removed these, but references to the plaintiff not consenting to providing the personal information (see paragraphs 6 and 8) and have discriminated against the plaintiff (paragraphs 6 and 18) must also be removed. Similarly, any complaint under the Privacy and Personal Information Protection Act 1998 (NSW) should be made to the Privacy Commissioner as this court has no jurisdiction.

22. The substantial errors of form in the Statement of Claim include:

1. failure to identify the publications with any precision;

2. failure to attach the said publications;

3. failure to plead the imputations arising from those publications; and

4. a discursive narrative of irrelevant material.

23. Rules 13.4 and 14.28 Uniform Civil Procedure Rules 2005 (NSW) provide:

“13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1)”

24. The Statement of Claim requires complete redrafting. Mr Potter suggested that this might an appropriate vehicle for a referral to the Registrar of the District Court so that the plaintiff can obtain pro bono assistance. This was an excellent suggestion and the plaintiff has been accordingly referred.

Likely defences of the defendants

25. Mr Potter noted that there is a statutory defence of good faith immunity under s 245G Children and Young Persons (Care and Protection) Act1998 (NSW) as follows:

“245G Protection from liability for providing information

(1) This section applies if a person, acting in good faith, provides any information in accordance with this Chapter.

(2) Any such person is not liable to any civil or criminal action, or any disciplinary action, for providing the information.

(3) In providing the information, the person cannot be held to have breached any code of professional etiquette or ethics or departed from any accepted standards of professional conduct.”

26. That defence, however, requires the proof of “good faith” and is not appropriate for summary dismissal.

27. There will also be a challenge as to whether publication occurred at all, by reason of the circumstances in which the publications were inter-office and solely within the Department, which is vicariously liable for the author as well as being the recipient. Mr Potter also drew my attention to the statements of Giles JA in State Bank of New South Wales Ltd v Currabubula Holdings Pty Ltd (2001) 51 NSWLR 399 at [125], where Giles JA said:

“[125] It is well established that communication to the agent or employee of the person defamed may be publication where that person is a natural person see for example Duke of Brunswick v Harmer (1849) 14 QB 185; 117 ER 75; Pullman v Walter Hill & Co Ltd; Rudd v Cameron (1912) 4 DLR 567; Jones v Brooks (1974) 45 DLR (3d) 413. But Currabubula is a company, and I do not think the cases to this effect can automatically be transposed to where the person defamed is a company. For reasons apparent from the preceding discussion, in accordance with principle I consider that a general statement as in Gatley on Libel and Slander is incorrect. Communication to someone who happens to be the employee of a company can be publication, but communication to a company by its employee is not publication.”

28. However, the statements of Giles JA do not amount to an assertion that there can be no publication to a third party in such circumstances, even where the employee to whom the publication is made is effectively acting as an agent for the company itself for the purpose of receiving the information.

29. The law is perhaps more comprehensively set out by Hunt J in Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 at 366-367 as follows:

“I should state that counsel for the plaintiff in her written submissions has debated whether the publication of defamatory matter by one employee of a company to another employee of that company constitutes a sufficient publication in law. Despite some academic views which apparently assert to the contrary, I am satisfied that there is certainly a publication in law by the first of those employees (here the second defendant). Even the dissenting judgment of Lord Denning MR in Riddick v Thames Board Mills Ltd [1977] QB 881 at 895, accepted that that was so.

There may perhaps be an argument still available to the company as to whether it is vicariously responsible for that publication where the second employee to whom the publication is made is in effect acting as the agent of the company itself for the purposes of receiving the information which the defamatory matter conveyed: see, eg, Re Devala Provident Gold Mining Co (1883) LR 22 Ch D 593 at 596; Re Djambi (Sumatra) Rubber Estates Ltd (1912) 29 TLR 495 at 496; Guarnaccia v Rocla Concrete Pipes Ltd [1976] VR 302 at 305-308; cf Finance and Guarantee Co Ltd v Commissioner of Taxation (Cth) (1970) 44 ALJR 368 at 370; Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647 at 661-662. The majority judgments in Riddick v Thames Board Mills Ltd do not, to my mind, necessarily exclude such an argument. But this point has not been raised by the first defendant in the present application; indeed, it could not be raised at this stage without evidence as to the positions held and the duties performed by the two employees to whom the publication is alleged to have been made.”

30. As Mr Potter acknowledged, the defences to be pleaded by the defendants in these proceedings require determination at trial and are not suitable for a summary dismissal application.

Costs

31. No submissions have been made in relation to costs.

Concluding remarks

32. The orders made are set out below. I thank Mr Potter and his instructing solicitor Ms Somerville for their careful and considerate conduct of this application and their assistance to the plaintiff throughout, which is in the best traditions of the conduct of model litigation.

Orders

1. On the grounds that it is in the public interest because of the personal sensitivity of the subject matter and the potential for disclosure and publication of a child and young person’s name or identity to cause either of them and their family members undue stress and embarrassment within the meaning of section 8(1)(a) (in relation to the administration of justice) and 8(1)(e) (in relation to the public interest) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), it is ordered pursuant to that Act that:

1. The name of the plaintiff in these proceedings be known as the pseudonym “Bianca Castafiore”.

2. The name of the second defendant in these proceedings be known as the pseudonym “Tristan Bior”.

3. The names of the plaintiff’s children to remain unpublished.

4. The name of the plaintiff’s children’s father to remain unpublished.

2. Dismiss the plaintiff’s application to extend time for the following publications:

1. The student report dated 1 September 2016;

2. The first five publications identified as Annexures 1 to 5 to the affidavit of Deborah Lilley of 29 March 2018, namely [redacted].

3. Strike out the plaintiff’s Statement of Claim in its original (11 January 2018) and amended (22 March 2018) form, but grant leave to the plaintiff to commence proceedings for defamation in relation to the document headed “Narrative – Risk ReAssessment” dated 24 February 2017 and “Client NCFAS G+R” dated 20 June 2017.

4. Pursuant to r 7.36 Uniform Civil Procedure Rules 2005 (NSW), refer the plaintiff to the registrar for referral to a barrister on the Pro Bono Panel specialising in Defamation for legal assistance including the drafting of an Amended Statement of Claim to identify the causes of action and imputations pleaded and such other assistance as the barrister and/or the registrar may deem necessary.

5. The Amended Statement of Claim is to be filed 21 days after the pleading has been settled by counsel.

6. Note no submissions have been made in relation to costs.

7. Matter stood over to the Defamation List on Thursday 31 May 2018 for further directions.

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Amendments

06 April 2018 - Typographical error in case name

Decision last updated: 06 April 2018