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

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").

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.

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

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

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.

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.

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.

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].

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…

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 Clark v Ibrahim

Details

AGLC: Clark v Ibrahim [2014] VSC 0
Case: [2014] VSC 30
Decision Date: 13 March 2014

CaseChat Overview and Summary

In the matter of Clark v Ibrahim, the plaintiff, Clark, sought damages for defamation against the defendant, Ibrahim, who published defamatory statements regarding Clark on social media. The dispute was brought before the Supreme Court of Victoria, which was tasked with determining whether the court should extend the limitation period for Clark to initiate legal proceedings. The crux of the case revolved around the applicability of the Limitation of Actions Act 1958 (Vic) and whether it was reasonable for Clark to have commenced the action within the one-year statutory period from the date of publication.

The primary legal issue before the court was whether the limitation period under the Limitation of Actions Act 1958 (Vic) could be extended due to the plaintiff's delay in initiating proceedings. Specifically, the court had to consider if there were circumstances that justified an extension of time beyond the one-year statutory period. The court examined whether it was reasonable for Clark to have commenced the proceeding within the prescribed time frame, considering the nature of the defamation and the delay in bringing the action.

The court found that it was not reasonable for Clark to have initiated the proceedings within the one-year period due to significant delays in discovering the defamatory content and assessing its impact. The court held that the plaintiff's delay was excusable given the circumstances, and thus, the limitation period could be extended. The court relied on section 23B of the Limitation of Actions Act 1958 (Vic), which allows for an extension if it is just and equitable to do so. The judge concluded that the application for an extension was meritorious, and the limitation period was accordingly extended to allow the defamation claim to proceed.

The court's decision allowed Clark to pursue the defamation claim despite the delay. The final orders of the court included an extension of the limitation period and a direction for the case to proceed to trial on the merits of the defamation claim. This outcome underscored the importance of assessing the reasonableness of delays in initiating legal proceedings and the potential for extending statutory limitations where justified.

Orders