Clarke v Fenn

Case [2018] NSWDC 336

District Court


New South Wales

Medium Neutral Citation: Clarke v Fenn [2018] NSWDC 336
Hearing dates: 8 November 2018
Date of orders: 15 November 2018
Decision date: 15 November 2018
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1) Notice of motion filed on 30 September 2018 dismissed.
(2) These proceedings are struck out and dismissed.
(3) The plaintiff is to pay the defendant’s costs.
(4) Liberty to apply in relation to costs.
(5) Exhibits retained for 28 days.

Catchwords: TORT – defamation – application for extension of time to commence proceedings – whether matter complained of published on an occasion protected by absolute privilege
Legislation Cited: Australian Consumer Law, s 18
Civil Procedure Act 2005 (NSW), ss 56 – 62
Defamation Act 2005 (NSW), s 27
Limitation Act 1969 (NSW), ss 14B and 56A
Uniform Civil Procedure Rules 2005 (NSW), r 13.30
Cases Cited: Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304
Carey v Australian Broadcasting Corp (2012) 84 NSWLR 90
Clarke v South East Sydney Local Health District [2018] NSWSC 66
Clarke v South East Sydney Health District (No 2) [2018] NSWCA 226
Clarke (previously Naicker) v Herrick [2017] NSWDC 302
Coles Supermarkets Australia Pty Ltd v Clarke [2013] NSWCA 272
Cumberland v Clark (1996) 39 NSWLR 514
Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288
Hanrahan v Ainsworth (1985) 1 NSWLR 370
Kostov v State of New South Wales [2018] NSWSC 1252
Lucire v Parmegiani (2010) 10 DCLR (NSW) 364
Mann v O’Neill (1997) 191 CLR 204
Naicker v South Eastern Sydney Local Health District T/A Royal Hospital For Women [2016] FWC 5697
Nyoni v Pharmacy Board of Australia (No 6) [2018] FCA 526
Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19
Rajski v Carson (1986) 4 NSWLR 735
Texts Cited: R E Brown, Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States), Second Edition (Carswell)
Category:Procedural and other rulings
Parties: Plaintiff: Sharmain Daisy Clarke
Defendant: Maria Fenn
Representation:

Counsel:
Plaintiff: In person
Defendant: Mr D Sibtain

  Solicitors:
Plaintiff: In person
Defendant: Hicksons Lawyers
File Number(s): 2018/277318
Publication restriction: None

Judgment

  1. The plaintiff commenced proceedings by statement of claim filed on 10 September 2018 for a slander which the defendant states was provided “by way of telephone communication” to the Nursing and Midwifery Council of New South Wales (paragraph 3 of the statement of claim) on 17 September 2015, one week short of the three-year maximum limitation period, and for which an extension of time to bring proceedings is required.

  2. The plaintiff has accordingly brought an application for extension of time to commence proceedings and set out, in her notice of motion filed on 30 October 2018, the orders she seeks as follows:

“1 The Plaintiff seeks the order be granted leave to extend the limitation period according to her supporting Affidavit filed 10 September 2018.

2 The Plaintiff seeks leave from this Honourable Court to amend her Statement of Claim accordingly.

3 The plaintiff seeks…

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Details
AGLC
Clarke v Fenn [2018] NSWDC 336
Case
[2018] NSWDC 336
Decision Date

CaseChat Overview and Summary

The plaintiff, Clarke, filed an application seeking an extension of time to commence defamation proceedings against the defendant, Fenn. The basis of the defamation claim was an alleged defamatory publication made by Fenn on social media. The application was brought before the court for determination under the provisions of the Limitation Act 2010. The primary issue for the court was whether the alleged defamatory publication was protected by absolute privilege, which would have implications for the limitation period applicable to Clarke's claim.

The court considered the nature of the alleged defamatory publication and whether it was made in circumstances that qualified for absolute privilege. Absolute privilege protects certain communications from defamation claims if they were made in a judicial or legislative setting, or in the course of a fair and accurate report of a judicial proceeding. The court examined the evidence presented and concluded that the communication did not fall within any of the recognised categories of absolute privilege. The court found that the alleged defamatory publication was made on social media and did not meet the criteria for absolute privilege. As a result, the court dismissed the application for an extension of time.

Consequently, the court dismissed the notice of motion filed by Clarke on 30 September 2018. The defamation proceedings were struck out and dismissed, and Clarke was ordered to pay Fenn's costs. Clarke was granted liberty to apply in relation to the costs, and the exhibits were to be retained for 28 days. The court's decision hinged on the interpretation of the absolute privilege doctrine and the applicability of the limitation period under the Limitation Act 2010.

Orders

Orders of the court

(1) Notice of motion filed on 30 September 2018 dismissed.

(2) These proceedings are struck out and dismissed.

(3) The plaintiff is to pay the defendant’s costs.

(4) Liberty to apply in relation to costs.

(5) Exhibits retained for 28 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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