Galam (BY Litigation Guardian Tichonova) v Shahin

[2023] SASCA 27

Supreme Court of South Australia

(Court of Appeal: Civil)

GALAM (BY LITIGATION GUARDIAN TICHONOVA) v SHAHIN

[2023] SASCA 27

Judgment of the Court of Appeal  (ex tempore)

(The Honourable Justice Doyle and the Honourable Justice Bleby)

17 March 2023

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT  - TIME FOR APPLICATION

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT - OTHERWISE ABUSE OF PROCESS

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COMMENCING PROCEEDINGS - TIME FOR SERVICE OF ORIGINATING PROCESS AND RENEWAL

The appellant made a claim for defamation and sought an apology and $10 million in damages.  The claim concerned a referral letter written by the respondent, a medical practitioner, on 21 November 1997.

The respondent sought orders summarily dismissing the claim pursuant to rule 144.2 of the Uniform Civil Rules 2020, on the basis that it was significantly out of time and that, as a consequence, there was no reasonable basis for prosecuting it.  The primary judge granted the respondent’s application and summarily disposed of the appellant’s claim.

The appellant appeals the decision of the primary judge.

Held, (per the court) dismissing the appeal:

1.The claim is out of time and the appellant has not identified any basis for impugning the primary judge’s conclusion that there is no reasonable basis for prosecuting the claim.

Limitations of Actions Act 1936 ss 37, 37A, 37B; Uniform Civil Rules 2020 r 143.1, r 144.2, referred to.

GALAM (BY LITIGATION GUARDIAN TICHONOVA) v SHAHIN
[2023] SASCA 27

Court of Appeal – Civil:    Doyle and Bleby JJA

1. THE COURT (ex tempore):     The appellant appeals against a decision of Judge Dart on 2 December 2022, in which he granted the respondent’s application to summarily dispose of the appellant’s claim.

2. The appellant’s claim is for defamation and seeks an apology and $10 million in damages.  The claim relates to a referral letter written by the respondent, a medical practitioner, on 21 November 1997.

3. The respondent’s application sought orders from the Court pursuant to rule 144.2(2) of the Uniform Civil Rules 2020, which permits the Court to grant summary judgment in favour of a respondent where there is no reasonable basis for prosecuting a claim.  In the alternative, it sought orders dismissing the action under rule 143.1(1) or (2).

4. In support of his application, the respondent relied on the fact that the appellant’s claim was significantly out of time.  Under s 37 of the Limitations of Actions Act 1936, a claim for defamation must be commenced within one year of the publication complained of.  While the court has power, under s 37B, to extend the time for the commencement of a claim where it is just and reasonable to do so, it may only do so for a period of up to three years from the date of publication.

5. Judge Dart held that in circumstances where the matter was commenced over 24 years out of time, and where s 37B of the Limitations of Actions Act did not permit an extension of the length of time needed, there was no reasonable basis for the prosecution of the appellant’s claim.  He was therefore satisfied that the respondent was entitled to summary judgment.  It was not to the point that the appellant may only have become aware of the allegedly defamatory letter in 2014.

6. The Judge added that even if there had not been a (fatal) difficulty with the timing of the claim, it was poorly drafted.  His Honour said that the claim was extremely difficult to follow, did not comply with the relevant rules, and could only be described as vexatious. He would thus have summarily dismissed the claim in any event.

7. The appellant appeals on grounds that the consequences of the defamation are continuing.  Whilst the appellant has filed material suggesting that he is experiencing ongoing consequences as a result of the subject letter, the claim is nevertheless anchored in the 1997 publication.  By reason of s 37A of the Limitations of Actions Act, even if the defamation had been repeated by the respondent – which is not squarely alleged – time nevertheless commenced to run when the letter was first published by the respondent.

8. Consequently, the appellant faces the same hurdle that he did at first instance.  The claim is significantly out of time.  As the judge held, it is not to the point that the appellant may not have become aware of the letter until 2014.  The appellant has not identified any tenable basis for contending that the claim is within time, or for an extension of time that would bring it within time.  It follows that the appellant has not identified any basis for impugning the judge’s conclusion that there is not a reasonable basis for prosecuting the claim.

9. Further, and in any event, we agree with the judge’s alternative conclusion that the claim should be dismissed as an abuse of process.

10. As it happens, the appeal is seven days out of time.  The appellant thus needs an extension of the time within which to appeal.  In circumstances where we have already addressed the merits of the appeal, we do not consider it necessary to separately address the need for an extension of the time within which to bring the appeal.

11. The appeal is dismissed.