Clark v Ibrahim

[2014] VSC 30

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2013 5470

LEIGHTON MOORE CLARK	First Plaintiff
HARMONIOUS BLEND BUILDING CORPORATION PTY LTD (ACN 006 261 089)	Second Plaintiff
v
MICHAEL IBRAHIM	First Defendant
BETHANY ADAMS	Second Defendant

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JUDGE:	Zammit AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	11 February 2014
DATE OF JUDGMENT:	13 March 2014
CASE MAY BE CITED AS:	Clark and anor v Ibrahim and anor
MEDIUM NEUTRAL CITATION:	[2014] VSC 30	Revised 29 September 2014

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DEFAMATION — Limitation of action — Extension of time application — Whether not reasonable in the circumstances for the plaintiff to have commenced proceeding within one year from date of publication — Limitation of Actions Act 1958 (Vic), ss 5(1) at AAA and 23B.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J Castelan	Bruce Caldwell and Associates
For the Defendants	Mr A Strahan	Minter Ellison

TABLE OF CONTENTS

Introduction......................................................................................................................................... 2

The plaintiffs’ claim........................................................................................................................... 2

Plaintiff’s submissions...................................................................................................................... 7

Legislation........................................................................................................................................... 8

Case law............................................................................................................................................... 8

Decision.............................................................................................................................................. 15

Conclusion......................................................................................................................................... 20

Attachment 1........................................................................................................................................ i

Table of publications sued upon in order of time.................................................................... i

HER HONOUR:

Introduction

1. By summons dated 26 November 2013 the plaintiffs seek orders pursuant to s 23B(1) of the Limitation of Actions Act 1958 (Vic) for an extension of the limitation period in respect of defamation claims arising from 13 posts (“the posts”) which the plaintiffs allege were uploaded by the defendants onto the website, (“Product Review website"). 

1. The plaintiffs rely on two affidavits sworn by the first plaintiff, Leighton Moore Clark on 26 November 2013 and 5 February 2014, and on written submissions dated 10 February 2014. 

1. The defendants rely on an affidavit sworn by the first defendant, Michael Ibrahim, on 6 November 2013.  The defendants also rely on written submissions dated 11 February 2014. 

The plaintiffs’ claim

1. The plaintiffs filed a writ and statement of claim on 21 October 2013. 

1. The plaintiffs allege that they were defamed by 15 posts that were uploaded by the defendants onto the Product Review website in the period from 7 November 2011 to 25 October 2012. 

1. Two of the publications pleaded by the plaintiffs were posted on the Product Review website on 23 October and 25 October 2012.  Given the writ and statement of claim were filed on 21 October 2013, an extension of time is not required in respect of the latter two posts.

1. The plaintiffs’ written submissions attached a summary of the 13 posts in date order.  I attach a copy of the summary, which conveniently summarises the publications sued upon in order of time.[1] 

   [1]See Attachment 1.

1. Of the posts complained of, eight are dated on or after 3 August 2012.  Accordingly, the eight posts are only two or three months outside the limitation period.[2] 

   [2]Plaintiffs’ written submissions at [11].

1. The first plaintiff is a registered builder and the owner and principal of the second plaintiff.  The second plaintiff is a company trading as a house builder under the business name “Clark New Homes”. 

1. The defendants are husband and wife.  The plaintiffs allege that the defendants were the owners of at least one computer with the internet protocol address of 203.45.135.109 (“the common IP address”). 

1. The plaintiffs allege that the defendants were the authors for posts made by a number of user names on the Product Review website.  They allege that each of the user names submitted posts to the Product Review website came from the common IP address.  The plaintiffs plead that there were a total of 15 posts by the defendants using the various user names on the Product Review website that are defamatory. 

1. The plaintiffs claim that by reason of each of the 15 publications, they have been severely injured in their reputation and standing and have suffered loss and damage.  In addition to a claim for damages and special damages, the plaintiffs claim aggravated damages and a permanent injunction restraining the defendants from publishing or causing to be published any material to the same purport or effects as any of the 15 publications pleaded. 

1. The plaintiffs are currently engaged in a defamation proceeding in the County Court of Victoria, Harmonious Blend Building Corporation Pty Ltd v Keene & Killeen, proceeding number CI-13-03258 (“the County Court proceedings”).  Those proceedings are based, amongst other things, on a number of posts that were published by the County Court defendants on the Product Review website.[3] 

   [3]Affidavit of Leighton Moore Clark sworn 26 November 2013 at [3].

1. The first plaintiff deposes that in the course of preparing for the County Court proceeding it became apparent that the County Court defendants had been posting other posts on the Product Review website but under different pseudonyms.  The plaintiffs in the County Court proceeding accordingly served a subpoena on Product Review seeking documentation in relation to details of the various user names (“the subpoena”). 

1. The subpoena sought the following class of documents:

(a)any document containing records of reviews and comments posted to Product Review about the business Clark New Homes of 461 Maroondah Highway, Lilydale Victoria 3140, including: in relation to 16 user names;

(b)your records detailing the ownership of the user name as set out in the paragraph (a) herein.[4]

[4]Affidavit of Leighton Moore Clark sworn 26 November 2013 at [4]-[5].

1. On 14 October 2013, the first plaintiff and his legal representatives inspected documents produced by Product Review pursuant to the subpoena (“the documents”).[5] 

   [5]Affidavit of Leighton Moore Clark sworn 26 November 2013 at [6].

1. The documents produced by Product Review related to a number of posts and comments that were uploaded onto the Product Review website and comprised:

(a)a print-out of a number of posted comments relating to the plaintiffs;

(b)Product Review’s records that identified the email addresses for each of the people who uploaded those posts and comments;

(c)Product Review’s records that appeared to identify the IP addresses of some of the computers used by the various posters and in other cases the IP addresses of ISP servers that were recorded in relation to each of the authors of those posts and comments.

1. The IP address is a computer’s unique identifier.  The relevance of this is that in considering the documents, the first plaintiff considered that the author of several of the posts and comments on the Product Review website came from the same IP number: 203.45.135.109.  The first plaintiff considered on the basis of this information that the author of “all of these posts on the Product Review website, that had that IP number, are in fact, the same person.”[6] 

   [6]Affidavit of Leighton Moore Clark sworn 26 November 2009 at [7] and [8].

1. Relevantly, the subpoenaed County Court documents revealed to the first plaintiff matters about the identity of people who had posted comments on the Product Review website which he was not previously aware of.[7] The first plaintiff considered that the following user names all belonged to a husband and wife, being the defendants in this proceeding, Michael Ibrahim and Bethany Adams:

(a)“Bosshog” at [email protected];

(b)“CHRIS LADY LADD” at [email protected];

(c)“Graetbatch” at [email protected];

(d)“Gyppo” at [email protected].

[7]Affidavit of Leighton Moore Clark sworn 26 November 2009 at [9].

1. The first plaintiff concluded that each of these emails belonged to the defendants because the defendants had previously communicated with the plaintiffs through the use of the email address [email protected]. 

1. Chris Ladd is the general manager of the second plaintiff.  The first plaintiff deposes that he has been informed by Chris Ladd and believes that Chris Ladd did not register the user name “CHRIS LADY LADD”. 

1. It was on this basis that the first plaintiff came to the view that the defendants operated each of the user names identified in the statement of claim in this proceeding. 

1. On 21 October 2013, the second plaintiff obtained leave from the County Court to use the documents for the purpose of issuing these proceedings.[8] 

   [8]Affidavit of Leighton Moore Clark sworn 26 November 2009 at [17].

1. The plaintiff deposes that the reason why the plaintiffs did not issue proceedings within the 12 month period of the postings originally being uploaded onto the Product Review website (in relation to the 13 posts relevant to this application) was that the first plaintiff:

(a)did not know the identities of any of the people that uploaded those posts and had no means of knowing;[9]

(b)did not know that it was actually one person or a married couple, who posted under a whole range of different pseudonyms, and were fraudulently representing that more people had complaints about the second plaintiff than was actually the case;[10]

(c)was never aware that he had an option of seeking non‑party discovery against Product Review or that such a course of action might reveal who had published these posts.[11]

[9]Affidavit of Leighton Moore Clark sworn 5 February 2014 at [46].

[10]Affidavit of Leighton Moore Clark sworn 26 November 2009 at [18].

[11]Affidavit of Leighton Moore Clark sworn 5 February 2014 at [47].

1. The first plaintiff concedes that he became aware of the existence of the 13 posts within a couple of months of when the individual posts were uploaded.  Over the period from June 2012 to June 2013, the plaintiffs tried a number of things to address the situation of the existence of the posts.  They were as follows:

(a)the first plaintiff tried to publish his own comments on the Product Review website, at least to put his own version of events;

(b)the first plaintiff tried to get the posts taken down from the Product Review website by using a function on the interface of the Product Review website that was for “reporting abuse” which involved reporting the posts to the operators of the Produce Review website;

(c)in or around May 2012, the first plaintiff engaged Dejan Search Engine Optimisation (“Dejan”) to do reputation management for the second plaintiff; and

(d)in late September 2012, the first plaintiff engaged the plaintiffs’ current solicitors, Bruce Caldwell and Associates to take steps to have the material removed from the Product Review website.[12]

[12]Affidavit of Leighton Moore Clark sworn 5 February 2014 at [6].

1. In relation to the first plaintiff’s own comments on the Product Review website, the first plaintiff’s posts were quickly removed by Product Review even though all of the posts that he complained about remained on the Product Review website until around October 2012.[13] 

   [13]Affidavit of Leighton Moore Clark sworn 5 February 2014 at [7]-[11].

1. In relation to the “report abuse” function on the Product Review website, from approximately the middle of 2011 to the middle of 2012, the first plaintiff reported to the Product Review website in relation to various posts that had been uploaded on at least ten occasions.  In addition, an employee of the second plaintiff also used the report abuse function on at least ten occasions himself under the first plaintiff’s instructions.  The report abuse did not just relate to the posts complained of in this case but at least several did so. 

1. The first plaintiff deposes that the only time he ever received a response from Product Review in relation to any of these complaints was on 2 June 2011 and other than that, he did not receive any other responses from it until he engaged his solicitors in late September 2012 and material was removed in October 2012.[14]  By around May 2012, the plaintiffs considered that reporting abuse to Product Review was a futile exercise and that was why they engaged Dejan to do on-line reputation management.[15] 

   [14]Affidavit of Leighton Moore Clark sworn 5 February 2014 at [12]-[14].

   [15]Affidavit of Leighton Moore Clark sworn 5 February 2014 at [15].

1. Until approximately September 2012, the plaintiffs believed that Dejan was taking care of the on-line reputation management for the second plaintiff.  However, the first plaintiff became aware in or around September 2012 that Dejan had done nothing about on-line reputation management.  By that time, the plaintiffs believed the only option left was to engage solicitors.[16] 

   [16]Affidavit of Leighton Moore Clark sworn 5 February 2014 at [19]-[21].

1. In relation to the engagement of the plaintiffs’ solicitors, Bruce Caldwell and Associates, the first plaintiff met with his solicitor Bruce Caldwell in approximately late September 2012.  The plaintiffs’ solicitors prepared a letter dated 27 September 2012 which was sent to Product Review.   A further letter was sent to Product Review on 16 October 2012.  Within a week of the 16 October 2012 letter, Product Review had removed the posts complained of. 

1. At approximately the same time, the first plaintiff instructed his solicitors to write to a number of people who he considered may have been putting the posts up.  The first plaintiff deposes that in many cases he could not prove who it was.  One of those letters was sent to the defendants in this case.[17] 

   [17]Affidavit of Leighton Moore Clark sworn 5 February 2014 at [25], exhibit LMC-14.

1. The first plaintiff was informed by his solicitors that this letter was returned unopened with the message that the defendants did not live at that address. 

Plaintiffs’ submissions

1. In summary the plaintiffs submit that it was not reasonable for them to bring defamation proceedings against the defendants in respect of any of the posts within the twelve month period from publication of any of them because:

(a)       given the anonymous nature of the internet, they did not and could not have known the identities of the usernames that uploaded the posts, at the time of the posts;

(b)      the plaintiffs could not have found out the identities of the usernames of the posts without issuing proceedings for pre-trial discovery and could not have known for sure that such a process would reveal the identities of the usernames; and

(c)       they did not and could not have known that all of the usernames in the posts were actually one person or a couple masquerading as several people and fraudulently representing that more people had complaints about the plaintiffs than was actually the fact.[18]

[18]Plaintiffs’ written submissions at [15].

1. The plaintiffs submit that it was not reasonable to expect them, when dealing with the anonymous comments on the internet to have gone to the expense of issuing a proceeding for pre-trial discovery.

Legislation

1. The Defamation Act 2005 amended the Limitation of Actions Act 1958 to say in s 5(1)AAA that:

An action for defamation must not be brought after the expiration of 1 year from the date of the matter complained of.

1. Under s 23B(1) an application may be made to the Court for an order to extend the limitation period for the cause of action. Under s 23B(5) such an order can be made even after the limitation period has already expired. The test is stated in s 23B(2) and (3) as being:

(2)A court, on an application under sub-s (1) 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 … to a period of up to 3 years from the date of the publication.

(3)The court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in sub-s (2).

Case law

1. The leading authority in Victoria, cited by both the plaintiffs and the defendants is John Casley v Australian Broadcasting Corporation.[19] The relevant publication was remarks made by ABC Radio presenter Jon Faine during a call with the plaintiff. 

   [19][2012] VSCA 182.

1. The plaintiff first complained about these remarks with the ABC.  He was not satisfied with the response received, so he then made a complaint to the Australian Communication and Media Authority (“ACMA”) about the remarks.  However, the complaint process applied by ACMA could not be used concurrently with legal proceedings, and so the plaintiff did not commence legal proceedings within time.  The plaintiff continued with the ACMA’s process and his complaint was eventually dismissed.

1. The plaintiff sought an extension of time on the basis that the delay occurred because he was pursuing a non-litigious resolution which would not be possible if proceedings were commenced. 

1. At first instance, Beach J refused to grant an extension.  He relied in part on the Queensland Court of Appeal case of Noonan v MacLellan,[20] which explained the operation of s 32A(2), the equivalent provision in the Queensland legislation:

Section 32A(2) of the Act proceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence an action to vindicate his or her legal right in accordance with the time limits provided by law.  While s 32A(2) proceeds on this assumption, it is obvious that only in relatively unusual circumstances will a court be satisfied that it is not reasonable to seek to vindicate one’s rights in accordance with the law.  The burden is on the plaintiff to point to circumstances which make it not reasonable to seek to enforce his or her legal right in the way required by law.[21]

[20](2010) 2 Qd R 537.

[21]Ibid at [15].

1. Beach J summarised the applicable law as developed by the Queensland Court as follows:

(a)       first, under s 23B the burden is on the applicant for an extension of time to point to circumstances which make it not reasonable in the circumstances to have commenced a proceeding within one year from the date of the publication;

(b)      secondly, the circumstances that might give rise to an extension are left at large;

(c)       thirdly, the test posed by s 23B(2) is an objective one.  It is not satisfied by showing that the applicant believed that he or she had a good reason not to sue;

(d)      fourthly, if the Court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period, then it must extend the limitation period. Unlike other extension of time provisions, there is no discretion whether or not to extend time.  However, a discretion exists as to the length of the extension to be granted which, in any event, may not exceed three years from the date of the defamatory publication;

(e)       fifthly, the section requires more of an application to show that it would have been reasonable not to have commenced the proceeding until after the one year period had expired: the Court must be satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period;

(f)       sixthly, the circumstances must be sufficiently compelling to satisfy the Court that it was not reasonable to commence the proceeding within the one year period the law ordinarily requires litigants to commence proceedings;

(g)      seventhly, s 23B of the Act proceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence a proceeding to vindicate his or her legal right in accordance with that time limit.[22]

[22][2013] VSC 251, [28].

1. Applying the above, Beach J refused to grant the extension.  He decided that the ACMA complaint route was “true alternative litigation”, in the sense that a person would choose between making a complaint or issuing proceedings, in this case, the plaintiff chose to complain to ACMA.  As such, Beach J refused to grant an extension of time. 

1. The approach taken by Beach J was upheld by the Court of Appeal.  Hansen JA explained that the facts of the particular case are most important:

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 commence an action within the period of one year from the date of the publication.  The concentration is upon the circumstances of the particular case.[23]

[23][2013] VSCA 182, [54].

1. Hansen JA agreed with Beach J that the crucial fact was that the plaintiff had chosen not to commence litigation.  He had chosen to rely on the ACMA proceeding.  The plaintiff failed the test to be granted an extension.  The Court was not convinced it was not reasonable for him to have commenced proceedings within the time limit.

1. In Carey v Australia Broadcasting Corporation,[24] the New South Wales Court of Appeal considered the application of the equivalent provision in New South Wales.  The plaintiff argued it was not reasonable for him to commence proceedings within the time limit because he was bound by orders by an undertaking to the Federal Court to limit his personal expenditure to $4,000 per week.  As such, he would have had to get permission from his receiver to get access to funds to commence proceedings.  The trial judge refused to grant an extension on the basis that he had never made a formal request for the funds to commence the proceedings nor made any application to the Court for an order to release the funds.  It appeared there was a real possibility that he would have been able to gain access to the fund.  This decision was upheld by the Court of Appeal. 

   [24](2012) NSWCA 176.

1. Beazley JA discussed the operation of the section, and held that the approach taken by the trial judge was correct.  She explained:

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.[25]

[25]Ibid, at [55].

1. Beazley JA found that the motivations and thought processes of the plaintiff could be taken into account when assessing what was “not reasonable in the circumstances”.  The test is not wholly objective, but rather objective in the sense “that a person could not bring themselves ‘within the test by proving only a subjective believe that it was not reasonable to bring the proceeding’”.[26]  In concluding, Beazley JA set out the operation of the section in that case:

The section requires the court to be satisfied that it was not reasonable “in the circumstances” to commence proceedings within one year of the date of the defamatory publication. That question involves an evaluative process, the outcome of which will depend upon the facts of a particular case.  Thus, a court might, and probably would, accept that it was not unreasonable to bring an action within the 12 month period if the person was unaware there had been a defamatory publication. A more contestable circumstance might be where a plaintiff established a lack of funds to be able to do so.  However, in the present case, her Honour was not satisfied that the appellant did not have funds that could be made available to him to commence an action within the one year period. In other words, the appellant had failed to satisfy the onus cast upon him by s 56A(2).[27]

[26]Ibid, at [57].

[27]Ibid, at [61].

1. In Sun v Hojunara International Group (No.2),[28] the plaintiffs operated a restaurant in Chinatown Sydney.  They asserted they were defamed by material published on a website between 5 August 2010 and 9 March 2010.  They sued the “moderators” of the website.

   [28](2013) NSWSC 1050.

1. The plaintiffs had sued the corporation responsible for the website before the expiry of the time limit.  They only sought to sue the individuals moderating the website when the company went into liquidation.  In these circumstances, Campbell JA granted an extension to sue the individuals.  His Honour noted that it was not necessary for the plaintiffs to “cast about to sue every possible defendant who might be in some way responsible for the publication of defamatory material complained of”.[29]  It was not a case where the plaintiffs had let the matter go stale; but rather, they had supposed that the corporation would be an appropriate defendant (which is was until the company went into liquidation in 2011). 

   [29]Ibid, at [23].

1. In Wookey v Quigley [No.2],[30] the plaintiff became aware of the four relevant publications through a pre-trial discovery process.  When the plaintiff saw the four publications, the time limit had expired for two of the publications by a few days.  For the remaining two publications, the time limit was expiring in the next seven days.

   [30](2010) WASC 209.

1. Kenneth-Martin J refused to grant an extension for proceedings based on the publications for the time had not expired when the plaintiffs first saw them.  He held that it was possible to have issued a writ in a couple of hours, and that this is what the plaintiff’s lawyers should have done.  A letter sent by the plaintiff’s lawyer made it clear that they understood what the legal position was.  Then any concerns with overlap could have been addressed with less urgency at a later date.  It was therefore “not reasonable” in all the circumstances for the plaintiff to have delayed. 

1. The situation of the earlier dated documents was more complicated.  However, Kenneth-Martin J also refused to grant an extension.  This was because it had become clear earlier during the litigation that it was likely that there were defamatory publications which existed that formed the basis of the application.  The plaintiffs had taken over six months to file third party discovery.  Given the short time for defamation actions, there was no sufficient justification for this delay.[31]  Kenneth-Martin J explained:

In all the circumstances, even though the plaintiff’s solicitors did not actually have the opportunity to view and assess these two publications until 14 January 2010 (when the 12 month limitation period had then expired in respect of the publications of 13 and 14 January 2009), I would assess the cause of them not having that opportunity until then and of the 12 month period expiring before a suit was brought, as the plaintiff’s failure to pursue the non-party discovery application more diligently after April 2009.[32]

[31]Ibid, at [81].

[32]Ibid, at [83].

1. In Cassar v Network Ten Pty Limited,[33] the plaintiff had been an Independent running for election in the 2010 federal election.  He claimed that a report by the defendant contained a defamatory report of when he was charged with assault (a charge for which he was later acquitted).  When the alleged assault occurred it was also reported by Channel 9, and he commenced proceedings against Channel 9 for defamation within time. 

   [33](2012) NSWSC 680.

1. He came across the publication by the defendant when "Googling" his name in 2011.  Hislop J refused to grant an extension of time, explaining:

The defendant submitted that the plaintiff could only success if he could establish, objectively, that it was not reasonable in the circumstances for him to commence 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 publication about him.

In my opinion, in the circumstances of the present case, the plaintiff or his lawyers would have been 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.[34]

[34]Ibid, at [21]-[22].

1. In Lakaev v Denny,[35] the plaintiff sought an extension of time to bring defamation proceedings with regard to comments made on a blog.  These comments were published in 2007, discovered after the time limit elapsed in 2008.  The proceedings were commenced in 2010.  The plaintiff submitted the delay was due to the anonymity of the person who posted the comments.  This meant it was not possible to initiate proceedings in time.  This argument was rejected.  The plaintiff had in fact chosen not to file pre-trial discovery for 24 months after becoming aware of the comment.  She was aware of the time limit for bringing defamation proceedings.  Instead, she pursued the alternate strategy of encouraging her supporters to commence an online campaign against the commentator.  It was the fact that she “deliberately took a non-litigious attitude to the publication of the defamatory material which significantly undermines her ability to discharge the burden” imposed by the limitation section.[36]  In addition, she apparently instructed her solicitors to seek pre-trial discovery 12 months before it actually occurred.  There was no adequate explanation for this delay.  Once she made the application, pre-trial discovery was ordered within weeks.  She failed to prove it was not reasonable for her to commence proceedings within the time limit. 

   [35](2010) NSWSC 1480.

   [36]Ibid, [39].

1. In Trkulja v Dobrijevic & Others,[37] the plaintiff sought an extension of time on the basis that he was pursuing settlement outside of litigation.  The publications in questions were two letters and spoken words published to various people in the Silvian Orthodox Church.  However, settlement negotiations between the parties did not commence until after the one year limitation period – time was just allowed to elapse.  Even though Beach J said that if one accepted all the plaintiff’s evidence, it might be possible to conclude his conduct was not unreasonable, he reiterated that this was not the test:

The plaintiff was required to show, in respect of each publication, that it was not reasonable to commence a proceeding within one year from the date of that publication.  The plaintiff has failed to do this.  His application must be dismissed.[38]

[37][2013] VSC 261.

[38]Ibid, [36]

1. In Han v Australian Kung Fu (Wu Shu) Federation Inc,[39] the relevant publications were reports made by email and in the report to the leadership of the Federation in 2009.  These publications imputed that the plaintiff was engaged in financial and administrative misconduct, and also that he had sexual intercourse with a woman affiliated with the Federation.  The defamation proceedings were commenced after the expiration of the limitation period.  While the plaintiff was aware of two of the publications, he had no knowledge of the email publications until May 2011.  Proceedings were commenced 30 June 2011. 

   [39][2011] VSC 498.

1. Mukhtar AsJ granted an extension for the email but not for the other two publications.  He said that as the plaintiff had not seen the email, it was “not reasonable in the circumstances for the plaintiff to have sued within one year of the publication”.[40]  He did not grant an extension for the other publications, rejected the excuse that the plaintiff had been preoccupied with other legal matters.

   [40]Ibid, at [24].

Decision

1. It is necessary to consider the steps taken by the plaintiffs prior to requesting the extension of time:

(a)       the relevant comments were posted on the website between 7 November 2011 to 25 October 2012.  Eight posts were dated after 3 August 2012; 

(b)      the first plaintiff admitted he became aware of the posts within a couple of months of the individual comments being uploaded; 

(c)       the first plaintiff first tried to publish some comments on the website; then he tried to have the posts taken down by clicking “report abuse”;

(d)      in May 2012 the plaintiff engaged a company to do internet reputation management;

(e)       in September 2012 the plaintiff engaged a firm of solicitors to take steps to have the posts removed; and

(f)       proceedings were commenced in October 2013 after information came to light during a County Court proceeding that the comments were all posted by the same person.

1. The question is whether the plaintiffs should have sought pre-trial discovery at an earlier stage, as this would have allowed them to determine who made the comments.

1. I consider that the plaintiffs have failed to show that it was not reasonable for them to commence proceedings within the time limit.  For the better part of a year they did not pursue litigation, and rather sought a technical solution to the comments.  When they finally saw a lawyer the comments were taken down but no further action was taken.  While they might not have known that all the comments were made by the same person, this is beside the point; there was the opportunity to find out, which the plaintiffs decided not to pursue.

1. The crucial fact is this case is the plaintiffs chose not to commence litigation.  The first plaintiff chose to pursue other avenues or means of dealing with the posts.  The first plaintiff argues that it was not reasonable for the plaintiffs to commence proceedings within the time limit, because they did not know the entities of any of the people that uploaded the posts and the first plaintiff had no means of knowing.  The first plaintiff submits that he was not aware that the posts were put onto the Product Review Website by the defendant and that he considered they had been put up by a range of different people.  The first plaintiff argues that he did not know of the pre-trial discovery procedure which may have revealed the identity of the defendant. 

1. The plaintiffs were at the relevant time involved in defamation proceedings within the County Court.  The plaintiffs may not have known of the pre-trial discovery procedure themselves, but chose initially not to seek the advice of solicitors in relation to the posts. I note that the plaintiff’s had access to lawyers throughout the County Court proceedings.  Even when the plaintiffs retained Bruce Caldwell and Associates in late September 2013, the first step that was undertaken was for the solicitors to send a letter dated 27 September 2012 to the Product Review.  The letter asks that the Product Review immediately remove the reviews and comments relating to the plaintiffs’ business from the Product Review Website without delay.  The letter put the Product Review on notice that if the reviews and comments were not removed, the plaintiffs’ solicitors would seek instructions to commence proceedings for the removal of the defamatory comments and seek damages.[41]

   [41]Affidavit of Leighton Moore Clark sworn 5 February 2014 at [22], exhibit LMC-11.

1. The plaintiffs’ solicitors did not receive a response to the letter dated 27 September 2012 and instead of commencing proceedings even then, elected to send another letter dated 16 October 2012 to the Product Review.[42] 

   [42]Affidavit of Leighton Moore Clark sworn 5 February 2014 at [23], exhibit LMC-12.

1. On 16 October 2012, the plaintiffs’ solicitors also wrote to a number of people who the first plaintiff thought may have been putting up the posts, including the defendant.  At this stage the plaintiffs’ evidence was that they could not be sure of who may have contributed to the Product Review website posts. 

1. The Product Review removed the posts complained of by the plaintiffs after receiving the letter dated 16 October 2012. 

1. The evidence is that the steps taken by the plaintiffs from the time they first became aware of the posts until the posts were removed by the Product Review on 16 October 2012, was to take measures which would remove the posts, not initiate litigation. 

1. As Beazley J explained in Carey v Australian Broadcasting Corporation,[43] the statutory test does not direct attention to whether it was reasonable not to have commenced proceedings, but rather whether the Court can be satisfied that it was not reasonable for the plaintiffs not to have commenced an action within one year of the date of the publication of the posts.

   [43][2012] NSWCA 176, at [55].

1. The plaintiffs could have sought legal advice about how to commence proceedings in circumstances where the potential defendants could not be identified.  They would have been advised of pre-trial discovery procedures.  It may well be that they thought they may have to commence up to 13 possible proceedings but it was not reasonable for the plaintiffs not to have taken this step.  The plaintiffs by their own evidence elected to take other steps to remove the posts from the website.  Even when they had retained solicitors they did not  issue proceedings or commence the pre-trial discovery process to identify the potential defendants.

1. It was only upon reviewing the subpoenaed documents in the County Court proceeding, which confirmed the identity of the defendants, that the plaintiffs decided to issue proceedings.  There is no question that upon ascertaining the identity of the defendant the plaintiffs took immediate action to institute proceedings against them in this Court. 

1. Not knowing the identity of a potential defendant is not however a bar to commencing proceedings. 

1. The plaintiffs were on notice from an early stage that the identity of the parties uploading the posts were pseudonyms.  For example the tenth publication (referred to in paragraph 46 of the Statement of Claim, para 1(b)(i) and the fifteenth publication (paragraph 64 of the Statement of Claim and paragraph 1(c)(i) of the summons) were posts uploaded by the username “CHRIS LADY LADD” on 23 March 2012.  The first plaintiff’s evidence is that he posted something on the Product Review Website in response to the two posts.  This was in circumstances where the first plaintiff deposes that Chris Ladd is the name of his general manager who works for the second plaintiff and is still employed by the second plaintiff.[44]  This fact must have triggered some concern for the plaintiffs that the usernames of the individuals uploading the posts were pseudonyms. 

   [44]Affidavit of Leighton Moore Clark sworn 5 February 2014 at [39].

1. The plaintiffs were aware of the alleged defamatory posts at or about the time they were posted.  The first plaintiff did not attempt to commence proceedings against Product Review or make any investigation prior to a letter dated 15 October 2012 sent by his solicitors to ascertain the actual identity of the defendants. 

1. As his Honour Mukhtar AsJ noted in Han v Australian Kung Fu (Wu Shu) Federation Inc,[45] the statutory test is an unusually difficult one for a plaintiff to satisfy.  It is unusual because unlike other fields in the law, it does not permit an extension if a court regards it as reasonable to do so according to defined circumstances.  But the Act proceeds on the assumption there may be circumstances which will make it not reasonable for a plaintiff to commence an action within 12 months of the defamatory publication.  A strict and short limitation period exists for defamation proceedings.  As noted in Wookey v Quigley[No.2],[46] this reflects a policy decision by Parliament.

   [45][2011] VSC 498, at [3].

   [46](2010) WASC 209, at [82].

1. In summary, I do not consider that in respect of each publication for which an extension of time is sought by the plaintiffs that they have shown that it was reasonable not to have commenced within time.  The plaintiffs’ evidence falls short of demonstrating that commencing proceedings within time would not have been reasonable.  The evidence is that the first plaintiff made a series of decisions not to pursue litigation.  It was only upon a coincidental disclosure of new material following the production of documents in the County Court proceedings that occasioned a change of heart in the plaintiffs which led to the issuing of this proceeding. 

1. A pre-trial discovery application would have disclosed information that the plaintiffs needed in order to decide whether or not to commence a proceeding.  The first plaintiff’s evidence in relation to when he engaged Dejan highlights the decision by the plaintiffs to pursue a technical solution to the problem.  James Ambler of Dejan told the first plaintiff that he did not need to go to lawyers and that he should stop going to the Product Review Website.  The first plaintiff accepted the advice and relied upon Dejan to do online reputation management for the business and the first plaintiff.  There can be no criticism of the first plaintiff’s attempts to deal with the problem at hand in the manner that he did.  However, the evidence reflects a deliberate decision not to pursue litigation and it cannot be said that the option of litigation was not one which the first plaintiff was not aware of or had not considered.  Not only were there the comments from Mr Ambler but also the retaining of solicitors in due course.  Accordingly, in the circumstances of this case I am not satisfied that it was reasonable for the plaintiffs not to have commenced the proceeding within time. 

1. It is understandable that the plaintiffs were aggrieved upon inspecting the County Court documents to discover that the posts all had been uploaded by the defendants and not different individuals.  This may be the case but it is not a reason why pre-trial party discovery could not have occurred earlier and the same findings made at an earlier stage which would have enabled the plaintiffs to bring this proceeding within time.

Conclusion

1. The plaintiffs’ application for an extension of time will be dismissed.

Attachment 1

Table of publications sued upon in order of time

Date	Review Thread	Publication defined in SOC	Para in SOC	Username	Post
7 Nov 2011	189896	14th	64	Bosshog	Yes we have just finished building with Clark New Homes.  I do not recommend them to my worst enemy they are worst building company I have come across, quality of building is also sub standard and very rude management.
23 March 2012	189896	15th	69	CHRIS LADY LADD	I’m a carpenter and worked for them for about 6 months.  Constant dramas with them altering plans and really bad organization in regards to supplying materials to the building site.  They are forever chasing their tails trying to fix mistakes.  I honestly can say that I was really embarrassed working for them and would not recommend them
23 March 2012	181068	10th	46	CHRIS LADY LADD	Do not believe Leighton Clark, we built with this bloke.  He is dishonest.  I suggest you do your research on this builder before you sign the contract and ask him for 6 contact names of people he has built for in the last 12 months.
22 April 2012	201833	3rd	14	Bosshog	We have just recently had a really bad experience with this building company.  Do not build with Clark New Homes.  How do you sleep at night reading these comments and knowing how many lives you have destroyed.  You have completely destroyed every aspect of our life and taken away our financial security we have worked so hard for over the years and I can clearly see we are not alone.  Clark homes must be stopped before they destroy more hard working families lives.
22 April 2012	181068	11th	50	Bosshog	Lina 10, we have just recently had a really bad experience with this building company.  Do not build with Clark New Homes.  Leighton, how do you sleep at night reading these comments and knowing how many lives you have destroyed.  You have completely destroyed every aspect of our life and taken away our financial security we have worked so hard for over the years and I can clearly see we are not alone.  Clark homes must be stopped before they destroy more hard working families lives
Date	Review Thread	Publication defined in SOC	Para in SOC	Username	Post
3 August 2012	181068	12th	54	Bosshog	We have just signed a contract with Clark new homes and are finding them very difficult to deal with, they have completely done a 360 degree backlit, after paying the deposit and signing us up.  My husband and I have just come across this site and are absolutely depressed by the comments left by past customers.  As we find our selfs in the same situation as fellow customers.  Only if we have found this site before signing u. We will be seeking legal advice on TERMINATING the contract.  As CLARK THINGS HE CAN MAKE UP COSTS AS HE GOES.  I have never met a dishonest man like this person.  Product review thank you for your site keep up the good work.
3 August 2012	181068	13th	59	Terry0202	The good the bad and Clark New homes.  They are awful.  The staff at the company come across as unprofessional.  I discovered this when enquiring at building with them most of the staff are part time, and I really get the impression that they just don’t care about the job.  They often petulant and reluctant to do more than the absolute minimum.  In addition, the staff turnover at this company is massive.  I have since built our dream house with Nickos Building, and have been so happy I did this
4 August 2012	201833	4th	19	Gyppo	How Clarkes manages to retain his licence is totally beyond me.  This guy is an absolute thief and scammer, if you want a house that is completely below standards and someone who will lie and lie about what they did, and then to follow through with regular VCAT appearances then this is the builder for you.  He is well known to VCAT but yet he still retains his licence.  Incompetence at its finest.
4 August 2012	201833	5th	24	Graetbatch	Yes we have had the same experience, look I think the building commission should definitely investigate clark new homes.  Surely they can’t keep building to these standards without any consequences.  If anyone is interested please call the commission on [number removed].  The more complaints put forward will help strengthen an investigation.

Date	Review Thread	Publication defined in SOC	Para in SOC	Username	Post
13 August 2012	201833 181068	6th	29	Graetbatch	Any one that plans on building with Clark new homes should ask the builder for at least 6 names of recent customers.  I guarantee you they will come up with an excuse like the privacy act.  Leighton Clark and Chris Ladd are not to be trusted, please save yourself the heartache, do not build with this company you will be left devastated just as I have been
12 Sep 2012	2012833	7th	33	Graetbatch	I know of 7 families that are currently taken this builder to vcat.  Don’t build with this bloke he is just another Christopher Skase they are related
24 Sep 2012	201833	8th	38	Boulder	Most appalling experience ever and I agree with a reviewers comment above that the ‘positive’ feedback had to be from in-house, as there has been nothing positive about dealing with this excuse for a builder.  We should have known from the outset when we first encountered the rude and incompetent prestart consultant, and its all been downhill from there.  Workmanship was extremely poor and we have ended up with leaking doors, cracked plaster, render falling off … Communication is as bad as their workmanship and we have been battling now for three years to get this dodgy company to fix  our house to a reasonable standard.  They won’t put a thing in writing (says it all) and won’t return calls.  Interesting that Leighton clark is never available to meet or even talk to us, yet he was quick to take our money.  We are about to lodge with the builders Registration Commission.  My advice to anybody looking to build with Clark New Homes is to STAY AWAY from these guys.

Date	Review Thread	Publication defined in SOC	Para in SOC	Username	Post
16 Oct 2012	201833	9th	42	Collin33	Clark new homes are without a doubt the most sorry excuse for builders I have encountered they should have finished building my property some two years ago and currently are not returning any telephone calls.  The Leighton Clark the manager owner of this company should be a fiction writer as he comes up with some very colourful excuses, how can you tell that he is lying? His lips move.  Don’t spend a penny with these cowboys, we know of at least two other families in the same position as us.  We are a hard working family and he has completely destroyed our dream of owning a house and wasted thousands of dollars of our money with no prospect of getting it back.  Avoid at all costs!
23 Oct 2012	307597	1st	4	Graetbatch	this is a disgrace there were over 40 negative comments in regards to this cowboy builder and they have all been taken down be warned this builder is a crook and a thief and a lying … he does not take responsibility for his dodge workmanship and has destroyed many hard working families lives.  STAY AWAY
25 Oct 2012	307597	2nd	9	Gyppo5	I agree with graetbatch why have all the negative comments been removed.  We have had our lives turned upside down by this builder.  And I don’t think its fair by produce review removing comments that are simply true.  Certainly the builder has complained, well litigation you should have done the right thing and build our houses to building regulations.  Stay away from this builder.