Donohue v Round and Ors (Ruling)
[2017] VCC 1711
•22 November 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
DEFAMATION LIST
Case No. CI-17-00988
| MARTIN JAMES DONOHUE | Plaintiff |
| v | |
| HELEN ROUND | First Defendant |
| and | |
| MACEDON RANGES WILDLIFE NETWORK INCORPORATED (REG. NO. A0062301F) | Second Defendant |
| and | |
| MARCUS WARD | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 November 2017 | |
DATE OF RULING: | 22 November 2017 | |
CASE MAY BE CITED AS: | Donohue v Round & Ors (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1711 | |
RULING
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Subject: DEFAMATION – APPLICATION TO JOIN ADDITIONAL DEFENDANTS
Catchwords: Defamation claim – plaintiff seeking to join additional defendants on the basis of information obtained from documents discovered by existing defendants – where limitation period has expired – whether the test set out in s23B(2) of the Limitation of Actions Act 1958 (Vic) has been satisfied.
Legislation Cited: County Court Civil Procedures Rules 2008; Limitation of Actions Act 1958 (Vic), s5(1AAA), s23B; Wildlife Act 1975; Civil Procedure Act 2010, s18(d)
Ruling: The plaintiff have leave to join Christine Litchfield and Melanie Fraser as defendants. The limitation period in respect of the plaintiff’s causes of action against Ms Litchfield and Ms Fraser be extended pursuant to s23B(1) of the Limitation of Actions Act 1958 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Castellan | Grillo Higgins Lawyers |
| For the Defendant | Mr A Pollock | Phoenix Legal Solutions |
HIS HONOUR:
1 By Writ issued on 18 March 2017, the plaintiff claims damages against the three defendants in respect of nine online publications made between 20 June 2016 and 23 July 2016 which he alleges are defamatory of him.
2 By their Defences, each of the three defendants deny any liability to the plaintiff.
3 On 28 August 2017, I made a number of orders, including that by 6 October 2017, each party must make discovery of nominated classes of documents. The parties agree that discovered documents of the defendants were received by the plaintiff’s solicitors on 14 October 2017.
4 The plaintiff alleges that the defendants’ discovered documents provide evidence that two persons who, up until this time, are not parties to the proceeding, were involved in each of the nine publications.
5 By Summons dated 3 November 2017, the plaintiff seeks orders that Christine Fay Litchfield and Melanie Fraser be joined as additional defendants.
6 The application is opposed.
7 Section 5(1AAA) of the Limitation of Actions Act 1958 (“the Act”) provides that an action for defamation must not be brought after the expiration of one year from the date of the publication of the matter complained of. That period has expired.
8 Section 23B of the Act provides that a person claiming to have a cause of action for defamation may apply to a court for an order extending the limitation period for the cause of action.
9 Section 23B(2) of the Act provides as follows:
“(2) A court, on an application under subsection (1), 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 5(1AAA) to a period of up to 3 years 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).”
10 Section 23B(5) provides that an order for the extension of a limitation period, and an application for such an order, may be made under this section even though the limitation period has already expired.
11 The parties were in agreement that the question to be resolved on this application is whether the Court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced the action against Ms Litchfield and/or Ms Fraser within the period of one year after the publications referred to, that is, by 23 July 2017.
12 Mr Pollock appeared on behalf of the three existing defendants and also on behalf of Ms Litchfield and Ms Fraser. He submitted that the plaintiff could have taken steps to identify any additional defendants, including Ms Litchfield and Ms Fraser, long ago and within the limitation period and, accordingly, the orders sought should not be made as this would involve joining those additional defendants some five months after the limitation period prescribed by s5(1AAA) has expired.
13 In support of the order sought in the Summons, the plaintiff swore an affidavit on 23 June 2017.[1] In addition, the plaintiff relies on an affidavit sworn by his solicitor, Tony Mario Petani, sworn on 12 May 2017.[2]
[1]Exhibit A
[2]Exhibit B
14 The plaintiff alleges that he was defamed by a number of articles published on the World Wide Web on a designated webpage produced by the second defendant.
15 The plaintiff operates a farm in Victoria in an area known as Pastoria consisting of 650 acres, producing lamb and wool. His farm abuts the property of the third defendant, who is the husband of Ms Litchfield.
16 In early June 2016, the plaintiff applied to the Department of Environment, Land, Water and Planning (“the Department”) for an Authority to Control Wildlife under the Wildlife Act 1975. He deposed that this was because he was having problems with kangaroos entering his property and destroying pasture, crops and fencing.
17 On 2 June 2016, the Department issued an Authority to Control Wildlife to the plaintiff. He had obtained similar authorities at various times in the past.
18 The plaintiff deposed that, in compliance with the Authority, on 7 June 2016, the plaintiff shot a number of kangaroos on his property at Pastoria.
19 On 9 June 2016, he received a Notice of Suspension of the Authority. Thereupon, he alleges that he ceased all wildlife-control activities on his property. By that, I understand that his allegation is that he ceased shooting wildlife, including kangaroos.
20 Later in June 2016, the plaintiff met with representatives of the Department, after which those representatives inspected the plaintiff’s property and inspected the bodies of kangaroos culled by him.
21 On 19 July 2016, the plaintiff was notified by the Department that his Authority was reinstated subject to certain conditions. The Department issued a media release stating that it had completed its investigation into the plaintiff’s activities and had found insufficient evidence and no legal basis upon which to prosecute him.
22 The plaintiff alleges that in the days and weeks following that reinstatement, the publications referred to in his Statement of Claim appeared and that they were defamatory of him.
23 These publications remained, in the main, on the website for some months. Some are alleged to remain currently on the Macedon Ranges Wildlife Network Facebook page.
24 On 9 November 2016, the plaintiff’s solicitors wrote to the second defendant and specifically asked for the offending statements to be removed from the Facebook page. He alleges that the second defendant has not removed them. Correspondence followed between the respective solicitors and, on 14 March 2017, this proceeding was issued by the plaintiff.
25 From that point, the history of the proceeding appears to be as follows:
(a) On 28 March 2017, the three existing defendants filed appearances;
(b)On 26 April 2017, the solicitors for the defendants requested of the plaintiff’s solicitors a further twenty-eight days to file defences. The plaintiff agreed to an extension of fourteen days. The defences were therefore due by 11 May 2017;
(c)On 27 April 2017, the plaintiff’s solicitors had written to the defendants’ then solicitors, stating:
“If orders cannot be agreed by 27 April 2017, and if your clients fail to file a defence by that time, our client reserves right to seek judgment in default of defence or, alternatively, if defences are filed but no agreement is reached on the timetable, we will request to have the matter set down for a directions hearing.”
(d)On 11 May 2017, the defendants’ current solicitors commenced acting for them;
(e)On the same date, those solicitors wrote to the plaintiff’s solicitors requesting a further extension of time for the filing of defences. This request was not agreed to;
(f)On 12 May 2017, the plaintiff applied for, and obtained, interlocutory judgment against the defendants for damages to be assessed. The Court directed that damages were to be assessed on 5 September 2017;
(g)By Summons dated 7 June 2017, the defendants applied for orders that the judgment obtained by the plaintiff against them be set aside;
(h)On 30 June 2017, the Court ordered, inter alia, and by consent, that the judgment against the defendants be set aside, and that the date for assessment of damages be vacated;
(i)On 28 August 2017, I ordered, inter alia, that each party make discovery of nominated classes of documents by 6 October 2017;
(j)On 14 October 2017, the defendants made discovery of documents to the plaintiff.
26 The plaintiff alleges that it was only upon receipt of the discovered documents from the three existing defendants that it became apparent that Ms Litchfield and Ms Fraser were involved in a campaign, together with the other defendants, to injure the reputation of the plaintiff, and prevent him from obtaining or retaining an Authority from the Department to shoot kangaroos on his farm. He alleges that it was only upon receipt of the discovered documents that he obtained evidence to establish an arguable case that Ms Litchfield and Ms Fraser published those publications referred to in his Statement of Claim. Until receipt of those discovered documents, the plaintiff was not aware of the extent to which the existing defendants collaborated in the campaign, or that Ms Litchfield or Ms Fraser participated in the publication of those publications identified in the Statement of Claim.
27 Counsel for the defendants submitted that the plaintiff could and should have engaged in an application for preliminary discovery or non-party discovery at a time prior to the expiration of the limitation period.
28 I see no reason to reject the evidence of the plaintiff in his supporting affidavit that until receipt of discoverable documents from the existing defendants, he simply did not have information as to the involvement of Ms Litchfield or Ms Fraser in the publications concerned. Whilst the plaintiff might have guessed that there were more people involved in the publications than the three existing defendants, identification of others would appear to have been no more than speculation.
29 I have read the affidavit sworn by Tony Mario Petani on 3 November 2017 and the exhibits thereto and consider that the contents indicate that there is an arguable case that Ms Litchfield and Ms Fraser did authorise, assent to, encourage, promote and/or lent their assistance to the publications the subject of the Proposed Amended Statement of Claim. Ms Fraser was the administrator of the relevant website and I am able to infer that she was aware of and involved each of the publications made on it. On 14 June 2016, the first defendant sent a draft of the first publication to Ms Litchfield and her partner, Marcus Ward (the third defendant), requesting them to review a draft of the first publication. On 15 June 2016, Ms Litchfield and her partner, Marcus Ward, had sent an email to the first defendant, which reads as follows:
“All good to go Helen. Thanks heaps. C&M.”
30 I consider that it is probable that the reference to C&M is a reference to Christine (Litchfield) and Marcus (Ward). I consider that the email is arguable evidence that they did assent to, authorise, encourage, promote, and lend their assistance to that publication and the later publications.
31 I have read the affidavit of Christine Fay Litchfield sworn on 14 November 2017 and note that she, in effect, denies any involvement in any of the publications. This affidavit was provided to the plaintiff’s counsel on the morning of the hearing. Its contents are likely to be contentious and it is appropriate for these issues to be determined at trial. The fact that the allegations against Ms Litchfield are denied is no basis for refusing the leave sought by the plaintiff.
32 I am satisfied that, in all of the circumstances, it was not reasonable for the plaintiff to have commenced an action in relation to the matters complained of within one year and, in fact, until receipt of the discovered documents on 14 October 2017. I consider that to have done so is likely to have amounted to a breach of the provisions of s18(d) of the Civil Procedure Act 2010.
33 Further, I note that s23B(2) of the Act contains the phrase “in the circumstances”. This, I consider, should be widely interpreted. I note that the Writ was issued on 14 March 2017, appearances filed on 28 March 2017, but the Defences were not filed by the due date. Had they been filed on time, that is, by 27 April 2017, it is likely that the discovery procedure would have been completed far earlier than mid October 2017. I consider that delay, caused by the defendants, is a relevant matter to be considered as one of the circumstances referred to in s23B(2) of the Act.
34 I accept the plaintiff’s submission that, on the basis of information known by him prior to the defendants’ discovery, it would have been improper for him, through his solicitors, to have commenced a proceeding against either Ms Litchfield or Ms Fraser.
35 In short, I am satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action against either of them in respect of the publications, the subject of his Statement of Claim, within one year of the date of those publications.
36 On that basis, the subsection provides that this Court must extend the limitation period described in s(5)(1AAA) of the Act for a period of up to three years from the date of publication.
37 In his Summons, the plaintiff also seeks an order that the limitation period for his causes of action against Marcus Ward be extended. This issue was not argued before me by the parties. Further, I note that in Mr Ward’s Defence, no limitation defence is pleaded. Accordingly, I shall not make that order, at least not at this time.
38 Accordingly, I shall make the following Orders:
(i) The plaintiff has leave to join Christine Fay Litchfield and Melanie Fraser as additional defendants to this proceeding.
(ii) The limitation period in respect of the plaintiff’s causes of action in defamation against Ms Litchfield and/or Ms Fraser is extended pursuant to s23B(1) of the Act until 30 November 2017.
(iii) There is leave to the plaintiff to file and serve an Amended Writ and Amended Statement of Claim in the form set out in Exhibit “TMP-1” to the affidavit sworn by Tony Mario Petani on 3 November 2017.
(iv) Direct that an Amended Writ and Statement of Claim, together with a copy of these Orders be served upon each of the five defendants by 4.00pm on 24 November 2017. Service of these documents upon Phoenix Legal, solicitors, shall be sufficient compliance with this Order.
(v) The directions hearing scheduled for 2.00pm on Wednesday, 29 November 2017 is confirmed.
(vi) The costs of and incidental to the plaintiff’s Summons are reserved.
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