Do v Kolsumdet Pty Ltd

[2022] FCA 1057

FEDERAL COURT OF AUSTRALIA

Do v Kolsumdet Pty Ltd [2022] FCA 1057   

File number(s):

NSD 1355 of 2021

Judgment of:

BROMWICH J

Date of judgment:

7 September 2022

Catchwords:

PRACTICE AND PROCEDURE – application for an extension to the limitation period for defamation proceedings to join a prospective respondent to an existing action under s 56A Limitation Act 1969 (NSW) and application for leave to file and serve an amended statement of claim and originating application to join the prospective respondent as the sixth respondent – where despite numerous inquiries made, the applicants failed to identify the prospective respondent – whether it was not reasonable for the applicants to have initially joined the prospective respondent within the limitation period – held: application granted and leave also be granted to file and serve an amended statement of claim and originating application

Legislation:

Defamation Act 2005 (NSW) s 31

Limitation Act 1969 (NSW) ss 14B; 56A

Cases cited:

Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA; 96 NSWLR 478

Cassar v Network Ten Pty Ltd [2012] NSWSC 680

Clark v Ibrahim [2014] VSC 30

Joukhador v Network Ten Pty Ltd [2021] FCAFC 37; 283 FCR 1

Paule v McKay (No. 2) [2022] ACTSC 190

Division:

General Division

Registry:

New South Wales

National Practice Area:

Other Federal Jurisdiction

Number of paragraphs:

11

Date of hearing:

7 September 2022

Counsel for the First, Second and Third Applicants:

R Rasmussen

Solicitor for the First, Second and Third Applicants:

O’Brien Criminal and Civil Solicitors

Counsel for the Second Respondent:

J-E McKenzie

Solicitor for the Second Respondent:

Hammond Nguyen Turnbull

Counsel for the First, Third, Fourth and Fifth Respondents:

C Parkin

Solicitor for the First, Third, Fourth and Fifth Respondents:

State Law Group

ORDERS

NSD 1355 of 2021

BETWEEN:

JENNIFER DO

First Applicant

BELINDA NGUYEN

Second Applicant

JULIE NGUYEN

Third Applicant

AND:

KOLSUMDET PTY LTD ACN 150 631 333 TRADING AS SILVER PEARL (DAI LAM SON) SEAFOOD RESTAURANT

First Respondent

BAILEY WANG

Second Respondent

LIAN CHAISUMDET (and others named in the Schedule)

Third Respondent

ORDER MADE BY:	BROMWICH J
DATE OF ORDER:	7 SEPTEMBER 2022

THE COURT ORDERS THAT:

1.The applicants be granted an extension of the limitation period in which to commence proceedings against Ms Hahn To, pursuant to s 56A of the Limitation Act 1969 (NSW), up to and including 4.00 pm on Friday, 9 September 2022.

2.The applicants have leave to file and serve an amended statement of claim and originating application to join Ms Hahn To as a sixth respondent and to make other amendments substantially in the form annexed to the affidavit of Mr Stewart O’Connell affirmed 16 June 2022.

3.The applicants pay the costs of the first to fifth respondents thrown away by reason of the amendments.

4.Ms To as the sixth respondent pay the applicants’ costs of and incidental to the application for an extension of time.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Delivered…