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

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

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

That this Notice of Motion be returnable instanter.

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.

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.

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

The Costs of this Motion be reserved.

The application is supported by the following affidavits:

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

Affidavit of Geoffrey Anthony Shannon sworn 22 August 2016.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jacobs v Levitt

Details

AGLC: Jacobs v Levitt [2016] NSWDC 202
Case: [2016] NSWDC 202
Decision Date: 05 September 2016

CaseChat Overview and Summary

The case of Jacobs v Levitt arose in the Supreme Court of New South Wales, involving a claim of defamation. The plaintiff, Jacobs, sought damages from the defendant, Levitt, for defamatory statements made in a publication. The core dispute was whether the plaintiff was entitled to an extension of the limitation period for commencing proceedings, given that he became aware of the publication only after the standard limitation period had expired.

The legal issue before the court was whether to grant an extension of time for the plaintiff to commence proceedings under section 56A of the Limitation Act 1969 (NSW). This section allows for an extension if the plaintiff was unaware of the cause of action due to circumstances beyond their control and it is just to grant the extension. The court had to consider the plaintiff's lack of knowledge of the publication and whether this was a sufficient ground for the extension, as well as the defendant's stance on the application.

The court found that the plaintiff was indeed unaware of the publication until after the limitation period had expired, and this unawareness was due to circumstances beyond his control. The court also considered the defendant's neutrality on the application, as Levitt neither consented to nor opposed the orders sought by the plaintiff. Given these factors, the court concluded that it was just to grant the extension. Accordingly, the court ordered an extension of time for the commencement of the proceedings, with costs to be paid as in the cause, and set deadlines for the filing of a defence and any subsequent reply.

The final orders included an extension of the time limit for Jacobs to commence the defamation proceedings to 2 August 2016, with costs to be borne as in the cause. The defendant was required to file any defence within 28 days, with a reply to be filed 14 days thereafter. The matter was stood over to 10 November 2016 for any further applications concerning the extension of time for filing the defence, and Somerset Ryckmans were directed to notify the defendant of these orders.

Orders

Orders of the court

(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.

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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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