Clarke v Herrick

[2020] NSWCA 71

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Clarke v Herrick [2020] NSWCA 71

Hearing dates:

17 April 2020

Decision date:

21 April 2020

Before:

Meagher JA; Leeming JA

Decision:

(1) Extend the time for Ms Clarke to file the summons seeking leave to appeal to 11 November 2019.

 

(2) Dismiss the summons seeking leave to appeal.

 

(3) Dismiss the notice of motion of 10 January 2020.

 (4) Order the applicant pay the respondents’ costs of that summons except for: the costs of Ms Clarke’s notice of motion filed 10 January 2020; and the costs of oral argument on 17 April 2020.

Catchwords:

APPEAL – application for leave to appeal – appeal from summary dismissal of amended claim – where original claim alleging republications subject to defences of absolute privilege – where amended claim alleging only original publication time barred – whether summary dismissal on the basis of amended pleading involved error or was procedurally unfair – leave refused

Legislation Cited:

Defamation Act 2005, s 27
District Court Act 1973 (NSW), s 127(2)(a)
Limitation Act 1969 (NSW), ss 14B, 56A
Uniform Civil Procedure Rules 2005 (NSW), rr 7.36, 50.12

Cases Cited:

Clarke v Fenn [2018] NSWDC 336
Clarke v Herrick [2019] NSWDC 533
Clarke v Nursing and Midwifery Council of New South Wales (No 3) [2019] NSWDC 532
Clarke v South East Sydney Local Health District [2018] NSWSC 66
Clarke v South East Sydney Local Health District (No 2) [2018] NSWCA 226
The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26

Category:

Principal judgment

Parties:

Sharmain Daisy Clarke (Applicant)

 

Julie Herrick (First Respondent)

  South Eastern Sydney Local Health District (Second Respondent)

Representation:

Counsel:
Applicant self-represented
D Sibtain (Respondents)

  Solicitors:
Applicant self-represented
Hicksons Lawyers (Respondents)

File Number(s):

2019/314474

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2019] NSWDC 533

Date of Decision:

12 September 2019

Before:

Gibson DCJ

File Number(s):

2019/134260

Judgment

1. THE COURT: By a summons filed 11 November 2019, the applicant, Ms Clarke, seeks leave to appeal from orders made by Gibson DCJ on 12 September 2019 striking out and dismissing her defamation claim on the basis that it was statute barred (Clarke v Herrick [2019] NSWDC 533). Ms Clarke requires leave to appeal from the order summarily dismissing her claim because that order was interlocutory (District Court Act 1973 (NSW), s 127(2)(a)).

2. That summons was filed more than 28 days after the orders appealed from were made, and is out of time (Uniform Civil Procedure Rules 2005 (NSW), r 50.12). Accordingly, in the summons seeking leave Ms Clarke applies for an extension of time in relation to its filing (see r 50.12(2)). That extension of time should be granted, so that Ms Clarke’s application for leave may be dealt with according to its merits. There is no prejudice to the respondent in the Court proceeding on that basis.

3. By a notice of motion filed 10…