Jacobs v Levitt

[2016] NSWDC 202

District Court

New South Wales

Medium Neutral Citation:	Jacobs v Levitt [2016] NSWDC 202
Hearing dates:	25 August 2016
Date of orders:	25 August 2016
Decision date:	05 September 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Pursuant s 56A Limitation Act 1969 (NSW), extend time for the commencement of these proceedings to 2 August 2016. (2) Costs to be costs in the cause. (3) Any Defence to be filed within 28 days. (4) Any Reply 14 days thereafter. (5) Matter stood over to Thursday 10 November 2016 in the Defamation List, on which date any application for an extension of time for the filing of the Defence may be made. (6) Somerset Ryckmans are to notify the defendant of these orders.
Catchwords:	TORT – defamation – application for extension of time to commence proceedings – plaintiff unaware of publication until after expiry of limitation period – defendant neither consents to nor opposes the orders sought – extension of time granted
Legislation Cited:	Limitation Act 1969 (NSW), s 56A
Cases Cited:	Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 Cassar v Network Ten Pty Ltd [2012] NSWSC 680 Rayney v State of Western Australia (No 3) [2010] WASC 83 Sun v Hojunara International Group (No 2) [2013] NSWSC 1050
Category:	Procedural and other rulings
Parties:	Plaintiff: Marcus Sonny Jacobs Defendant: Stewart Alan Levitt
Representation:	Counsel: Plaintiff: Mr S Jacobs / Mr V N Misra Defendant: Ms G Kaur (solicitor)   Solicitors: Plaintiff: Serman & Associates Defendant: Somerset Ryckmans
File Number(s):	2016/232665
Publication restriction:	None

Judgment

1. The plaintiff by notice of motion filed in court on 18 August 2016 seeks orders as follows:

1. That leave be granted to file this Notice of Motion in Court.

2. That this Notice of Motion be returnable instanter.

3. That leave be granted under s 56A of the Limitation Act 1969 (NSW) for an extension of the limitation period for the institution of an action for damages for defamation of the Applicant [plaintiff] by the Respondent [defendant] in accordance with the Statement of Claim filed 2nd August 2016 herein.

4. That these proceedings be case managed concurrently with District Court proceedings No 2016/175994, and that proceedings numbered 2016/175994 be stayed pending the judgment of this Honourable Court in respect of this Motion.

5. With such further and alternative remedies that it may please this Honourable Court to give the Applicant [plaintiff].

6. The Costs of this Motion be reserved.

2. The application is supported by the following affidavits:

1. Affidavit of Malcolm Serman, the plaintiff’s solicitor, sworn 23 August 2016; and,

2. Affidavit of Geoffrey Anthony Shannon sworn 22 August 2016.

3. The defendant, rather unusually, neither consented to nor opposed the application and submits only that it is a matter for the court to determine whether an extension of time should be granted pursuant to the provisions of s 56A Limitation Act 1969 (NSW). As is set out below in more detail, the plaintiff encountered difficulties in the Registry in the bringing of this application, which I heard urgently and on the basis that I would provide reasons for my granting the extension at a later date, there being other applications in the list with priority. These are the reasons for the orders made on 25 August 2016.

The circumstances in which the matter complained of came to the plaintiff’s attention

4. The circumstances in which the matter complained of came to the attention of the plaintiff are set out in the affidavit of Mr Shannon, who manages website enquiries for the advocacy group “Unhappy Banking”, a consumer advocacy organisation specialising in mortgage disputes arising from bank loans, mainly to farmers.

5. Mr Shannon was informed in about June 2016 of defamation proceedings commenced by the defendant against the plaintiff, when he was sent a copy of the statement of claim in those proceedings (District Court file 2016/175994). On reading that document, he recalled receiving an email from Mr Levitt, the defendant in these proceedings, some time during 2014, which he considered might be relevant.

6. Mr Shannon had some difficulty locating the defendant’s 2014 email, which had been sent to an email address he had stopped using some time ago. Having located his now inactive email account on his mobile telephone, he found the email in question, which he sent to the plaintiff on 12 June 2016.

7. Mr Shannon sets out in his affidavit that the contents of this email had been a substantial factor in his authorising the defendant to lodge disciplinary complaints on behalf of himself and his wife against the plaintiff. Although Mr Shannon and his wife later withdrew their complaint against the plaintiff, the matter complained of was not shown to the plaintiff at any time during this complaint, or prior to Mr Shannon sending it to the plaintiff on 12 June 2016.

8. As soon as the matter complained of came to the plaintiff’s attention, he consulted his solicitor, Mr Serman, who sets out in his affidavit the circumstances in which he attended the Registry on 18 July 2016 for the purpose of bringing this application. There were some misunderstandings in the Registry, apparently due to the similar names in use in proceedings 2016/175994. It was by reason of the confusion caused, which was not the error of any of the parties, that I dealt with this application as a matter of urgency on 25 August 2016.

9. The period of extension of time is from 23 January 2015, which is approximately one year and eight months.

The legislation and relevant principles

10. 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).”

11. The test posed by s 56A was described by Malcolm CJ in Rayney v State of Western Australia (No 3) [2010] WASC 83 as “a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances” (at [41]). What “unusual circumstances” may constitute grounds for extension are referred to by Simpson J in Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [52], and include circumstances where the plaintiff is “unaware of the publication”.

12. In Cassar v Network Ten Pty Ltd [2012] NSWSC 680, Hislop J stated that the grant of an extension is not a matter for the discretion of the court but is mandatory if the plaintiff can satisfy the relevant criteria. In Sun v Hojunara International Group (No 2) [2013] NSWSC 1050, Campbell J summarised Hislop J’s principles concerning the criteria for s 56A as being the following six factors:

1. The burden that must be discharged is to establish that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the date of the publication;

2. The onus rests with the plaintiff;

3. The test is objective;

4. It is a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances;

5. If the plaintiff proves the fact then the court is obliged to extend time. Extension in these circumstances is mandatory; and

6. Section 56A limits the period of extension to an extension “of up to three years running from the date of publication”. This has been described as involving the exercise of discretion in the sense of involving a normative judgment.

13. Campbell J goes on to note that, while the test is an objective one, a consideration of the circumstances required by s 56A includes an inquiry into the plaintiff’s reasons for not commencing proceedings within the limitation period, which may involve consideration of some subjective aspects of the case.

14. However, there can be no doubt that it would not be “reasonable” in the circumstances for the plaintiff to have commenced an action in relation to a publication he knew nothing about. While the principles expressed in s 56A must be proved to the satisfaction of the court in the same type of evaluative exercise required for the decision of any contested issue of fact, there are effectively no facts in dispute in the present case, in that there is no challenge to the plaintiff’s claim of lack of knowledge until 16 June 2016 of the matter complained of. In those circumstances, the plaintiff’s application for an extension of time must be granted.

15. I have deferred the application for these proceedings to be case managed concurrently with proceedings 2016/175994 until the pleadings in these proceedings have closed.

Orders

1. Pursuant s 56A Limitation Act 1969 (NSW), extend time for the commencement of these proceedings to 2 August 2016.

2. Costs to be costs in the cause.

3. Any Defence to be filed within 28 days.

4. Any Reply 14 days thereafter.

5. Matter stood over to Thursday 10 November 2016 in the Defamation List, on which date any application for an extension of time for the filing of the Defence may be made.

6. Somerset Ryckmans are to notify the defendant of these orders.

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Decision last updated: 05 September 2016