Clarke v Herrick

[2019] NSWDC 533

District Court

New South Wales

Medium Neutral Citation:	Clarke v Herrick [2019] NSWDC 533
Hearing dates:	12 September 2019
Date of orders:	12 September 2019
Decision date:	12 September 2019
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Proceedings struck out and dismissed. (2) Plaintiff pay the defendants’ costs. (3) Exhibits retained for 28 days.
Catchwords:	LIMITATION OF ACTIONS – claim for defamation brought more than three years after publication – no issue of principle
Legislation Cited:	Limitation Act 1969 (NSW), ss 14B and 56A
Cases Cited:	Bahonko v Sterjov & Ors [2007] FCA 1244 Bahonko v Sterjov [2008] FCAFC 30 Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304 Clarke v Fenn [2018] NSWDC 336 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 Zaghloul v Woodside Energy Limited (No 8) [2019] FCA 971
Category:	Principal judgment
Parties:	Plaintiff: Sharmain Daisy Clarke First Defendant: Julie Herrick Second Defendant: South Eastern Sydney Local Health District trading as Prince of Wales Hospital
Representation:	Counsel: Plaintiff: In person Defendants: Mr D Sibtain   Solicitors: Plaintiff: In person Defendants: Hicksons Lawyers
File Number(s):	2019/134260
Publication restriction:	None

Judgment

1. The plaintiff commenced proceedings by statement of claim filed on 26 April 2019 for a series of publications which included documents filed on the JusticeLink database, such as an affidavit sworn on 5 April 2018, as well as similar publications. These claims have since been withdrawn, following a foreshadowed application for summary dismissal on the basis of absolute privilege.

2. The plaintiff has now filed an amended statement of claim (exhibit A) setting out, in paragraphs 8 to 10, a wholly new matter complained of, in circumstances in which it is clear that this new claim is based upon a document published on 4 September 2015, this being the document which is set out in her affidavit immediately following page 4. It consists of a pro forma document headed “Workers Compensation Injury Notification Form” which has been filled out by the first defendant, Ms Herrick.

3. This document’s “Workers Compensation Injury Notification Form” heading is followed by the wording, “Fax completed form to the workplace safety and injury management service within 24 hours (underlined) of the injury occurring”. The dates on that document all confirm that the document in question was created following a date of reported injury of 7 to 22 August 2014, which was notified on 5 September 2014 and signed off by Ms Herrick, the nurse unit manager, on 5 September 2014.

4. In the statement of claim, the plaintiff sets out that she became aware of this document for the first time on or about 16 to 31 January 2018 (paragraph 8 of the amended statement of claim).

The application before the court

5. The plaintiff does not seek an extension of time to commence proceedings. The application before the court is brought by the defendants, and is for summary dismissal, on the basis that the publication falls outside the three year period applicable under s 56A Limitation Act 1969 (NSW), namely 4 September 2017.

The relevant statutory provisions

6. 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.”

7. Section 56A Limitation Act 1969 (NSW) provides:

“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).”

8. The general test to apply for applications of time within this three year period is set out in Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304. However, the plaintiff’s difficulty is of a more fundamental nature, in that her right to any cause of action, even if an extension were applied for and granted, expired on 4 September 2017. Even at the time that she says she first saw the document, which is in mid to late January 2018, her right to bring an action for defamation had already expired.

9. In my judgment in other proceedings brought by Ms Clarke (Clarke v Fenn [2018] NSWDC 336), I set out these provisions at [13]-[14] and the relevant tests to apply at [15]-[17]. The difficulty for her is that in these circumstances there is no power to grant an extension even if one had been sought.

10. Ms Clarke has put a number of matters to me in her affidavit (which I note that I have dealt with as if it were a submission) in support of her claim to be permitted to bring this action. Essentially what she submits is that she was reduced to a state of such physical and mental ill health that by the conduct of the defendants and/or their solicitors that she was unable to process anything in relation to her claim. However, she has been involved in other litigation during this period, as I noted in Clarke v Fenn at [20], and as was noted in the Fair Work Commission in Naicker v South Eastern Sydney Local Health District T/A Royal Hospital For Women [2016] FWC 5697.

11. The distress of the plaintiff by reason of the circumstances of her dismissal and the subsequent litigation are matters for which I can express some sympathy, but they are of no assistance to her in this application. Her claim is brought well outside the limitation period and must be dismissed.

12. I pause to note that there are other compelling problems in relation to any cause of action being brought in relation to this claim. There is no suggestion that there is publication after 5 September 2014 but, even if there were, the very nature of this document, namely a document requiring to be completed for the purpose of Workers Compensation legislation, is such that there must be real doubt as to whether such a claim is actionable at all.

13. Liability for defamation for statements in workplace-related documentation generally tend to fall into a grey area in terms of absolute privilege, and the result has been a series of inconsistent rulings. In Bahonko v Sterjov & Ors [2007] FCA 1244, a workplace report prepared in November 2004 was produced to the tribunal under compulsion of law in a wrongful dismissal claim in 2005. The dismissed employee brought a claim for defamation. Most unfortunately, the defences were not considered and the applicant was awarded $50, a judgment confirmed on appeal: Bahonko v Sterjov [2008] FCAFC 30. However, courts have more recently been alert to absolute privilege for workplace documents, particularly if produced to a tribunal or court: Nyoni v Pharmacy Board of Australia (No 6) [2018] FCA 526; Zaghloul v Woodside Energy Limited (No 8) [2019] FCA 971.

14. It seems to me to be arguable that the entitlement of parties to be protected by immunity from suit for court-related proceedings may well extend to the carrying out of steps under compulsion of law in accordance with the legislation, of which the completion of this form was clearly one. While I express no concluded view on this issue, I note it as an ongoing problem in defamation proceedings, namely that actions of this kind raise complex issues in circumstances where the entitlement to bring a claim require careful clarification by courts.

15. Notwithstanding these observations (and I note a number of other difficulties with the pleading raised by Mr Sibtain), these proceedings must be summarily dismissed by reason of the expiry of the limitation period and I propose accordingly to make orders to that effect.

16. Prior to making that order I ask Ms Clarke to address me in the issue of costs.

17. HER HONOUR: Do you have anything to say in relation to the issue of costs?

PLAINTIFF: Your Honour, in the issue of costs, costs follow the event so there’s nothing I can do about it at the moment.

HER HONOUR: Yes, that’s right, I’m afraid so.

PLAINTIFF: But if your Honour could determine the matter such that the defence was not filed within the appropriate time or the - your Honour.

HER HONOUR: Can I say this, your opponents are not obliged to file any defence--

PLAINTIFF: Right.

HER HONOUR: --because those rules are suspended in the defamation list.

PLAINTIFF: I didn’t--

HER HONOUR: There is no requirement to file a defence until I make an order for them to do so. That has been the case in all defamation lists since Hunt J set it up in 1979 in the Supreme Court. Leaving aside that the current pleading is the amended statement of claim filed on the 28 August 2019, I don’t think they’re even out of time even if that were not the case. So, as you filed an amended statement of claim, even if I were wrong and they were obliged to file a defence in 28 days, they’re still within time.

Orders

1. Proceedings struck out and dismissed.

2. Plaintiff pay the defendants’ costs.

3. Exhibits retained for 28 days.

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Decision last updated: 02 October 2019