Foley v Rosier

Case [2014] NSWDC 92

District Court


New South Wales

Medium Neutral Citation: Foley v Rosier [2014] NSWDC 92
Hearing dates:4 and 11 July 2014
Decision date: 14 July 2014
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1) Plaintiff's applications for extension of time to serve the statement of claim, leave to amend and for transfer to the Local Court refused.

(2) Statement of claim dismissed.

(3) No order as to costs.

Catchwords: TORT - defamation - solicitor commences proceedings against former client following lodgment of a complaint at the Office of the Legal Services Commissioner - proceedings commenced after expiry of limitation period and never served - plaintiff receives advice from the Office of the Legal Services Commissioner that the defendant's complaints were published on occasions protected by absolute privilege pursuant to s 27(2) Defamation Act 2005 (NSW) - plaintiff applies for extension of time to serve statement of claim, transfer of proceedings to the Local Court and leave to amend - complex alternate claims for injurious falsehood and misleading and deceptive conduct proposed - whether extension of time should be granted - whether leave to amend should be granted - whether proceedings suitable for transfer to the Local Court - applications for extension of time, leave to amend and transfer to Local Court refused - statement of claim dismissed
Legislation Cited: Australian Consumer Law (Cth), Part 2-1
Civil Procedure Act 2005 (NSW), ss 56 - 62, 64, 65, 146(2), 148 and 149
Defamation Act 2005 (NSW), s 27 and Schedule 1 clauses 15(1)(a) and 18
Limitation Act 1969 (NSW), s 14B
Uniform Civil Procedure Rules 2005 (NSW), rr 1.2, 6.2(4)(b)(i), 15.19 and 19.1
Cases Cited: Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676
Ballina Shire Council v Ringland (1994) 33 NSWLR 680
Crux - Southern Cross University Post Graduate Association Inc v Watts & Ors [2013] NSWDC 254
Energetech Australia Pty Ltd v Sides Engineering Pty Ltd [2005] NSWSC 1143
Flanagan v Urban Publishing Pty Ltd [2012] NSWDC 238
Lucire v Parmegiani [2012] NSWCA 86
Lucire v Parmegiani (2010) 10 DCLR (NSW) 364
Merman Pty Ltd v Cockburn Cement Ltd (1988) 84 ALR 521
Munn v Tunks [2013] NSWSC 1263
Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924
Sleeman v Tuloch Pty Ltd [2013] NSWDC 43
Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337
Weston (in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liq)) v Publishing & Broadcasting Ltd (2012) 88 ACSR 80
Texts Cited: -
Category:Interlocutory applications
Parties: Plaintiff: Michael David Foley
Defendant: Caroline Margot Rosier
Representation: Plaintiff: In person
Defendant: No appearance
Plaintiff: In person
Defendant: No appearance
File Number(s):2014/104522
Publication restriction:None

Judgment

  1. The plaintiff seeks the following orders:

(a)   An extension of time for service of the statement of claim filed on 7 April 2014;

(b) Leave to amend the statement of claim to withdraw his claim for defamation and to amend the pleading to claim, on the basis of the same publication, a claim for injurious falsehood…

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AGLC
Foley v Rosier [2014] NSWDC 92
Case
[2014] NSWDC 92
Decision Date

CaseChat Overview and Summary

A former client, Mr Rosier, sought to commence defamation proceedings against his former solicitor, Mr Foley, after lodging a complaint with the Office of the Legal Services Commissioner. The complaint was lodged outside the limitation period, and the proceedings were never served. Subsequently, Mr Foley received advice from the Office of the Legal Services Commissioner that the complaints were published on occasions protected by absolute privilege under section 27(2) of the Defamation Act 2005 (NSW). Mr Foley applied for an extension of time to serve the statement of claim, leave to amend the pleadings, and for the proceedings to be transferred to the Local Court. The proposed amendments included claims for injurious falsehood and misleading and deceptive conduct. The court had to determine whether an extension of time should be granted, whether leave to amend should be granted, and whether the proceedings were suitable for transfer to the Local Court.

The court considered the requirements for an extension of time, including whether the delay was inexcusable, and whether the defendant would be prejudiced. The court also considered the relevance of the absolute privilege advice and the likelihood of success of the amended claims. The court found that Mr Rosier would be prejudiced by the delay, and the proposed amendments would not succeed. The court noted that the alleged defamatory material was subject to absolute privilege, and the proposed alternative claims were unlikely to succeed. The court held that the proceedings were not suitable for transfer to the Local Court due to their complexity.

The court refused the applications for an extension of time, leave to amend, and transfer to the Local Court. The statement of claim was dismissed, and no order was made as to costs. This decision highlights the importance of timely commencement of proceedings and the need for careful consideration of proposed amendments in defamation cases. It also underscores the court's discretion in determining whether proceedings are suitable for transfer to the Local Court.

Orders

Orders of the court

(1) Plaintiff's applications for extension of time to serve the statement of claim, leave to amend and for transfer to the Local Court refused.

(2) Statement of claim dismissed.

(3) No order as to costs.

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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