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Jay v Petrikas

Jay v Petrikas

Case [2019] NSWDC 707 28 November 2019

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Civil Litigation & Procedure

Tort Law

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District Court

New South Wales

Medium Neutral Citation: Jay v Petrikas [2019] NSWDC 707
Hearing dates: 31 October 2019
Date of orders: 28 November 2019
Decision date: 28 November 2019
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) An order granting leave to the plaintiffs to amend the motion filed 6 September 2019.
(2) An order pursuant to s 63(2) of the Civil Procedure Act 2005 (NSW) that the Amended Statement of Claim lodged for filing on 30 August 2019 be treated as having been duly filed by the District Court Registry at Sydney on that date (30 August 2019).
(3) The plaintiffs’ application pursuant to s 56A(2) of the Limitation Act 1969 (NSW) extending the limitation period provided by s 14B of the Defamation Act 2005 (NSW) so as to commence a claim in defamation against Ms Karen Hodges as set out in the Amended Statement of Claim filed in proceedings No. 2019/72815 is dismissed.
(4) Cost reserved with liberty to apply.
(5) Liberty to the parties to bring in Short Minutes of Order reflecting a timetable for the conduct of these proceedings in 7 days.
(6) Exhibits retained for 28 days.

Catchwords: TORT – defamation – application to pursuant to s 56A(2) Limitation Act 1969 (NSW) to extend the limitation period provided by s 14B of the Defamation Act 2005 (NSW) – limitation period expired on 6 September 2016 – amended statement of claim filed without leave on 30 August 2019 and rejected by the Registry – whether orders should be made for the irregularly filed pleading under ss 16 and 63(2) Civil Procedure Act 2005 (NSW) – whether an extension under s 56A should be granted – whether the court should extend the limitation period to the date the plaintiffs filed the amended statement of claim commencing defamation proceedings or is required to choose the date to which the limitation period is extended – whether there were unexplained delays at a time when the plaintiffs were aware of all the matters related to the defamation – whether plaintiffs’ knowledge of the likely contents of the matter complained of sufficient – plaintiffs warn of an application for preliminary discovery but fail to seek orders - whether preliminary discovery an obvious step – “not reasonable” in the circumstances for the plaintiffs to have delayed past October 2018 after their solicitors had written to the defendants’ solicitors on 8 June 2018 showing an appreciation of their clients’ entitlements to bring an application for preliminary discovery – application for extension of time refused
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 16 and 63
Defamation Act 2005 (NSW), s 14B
Government Information (Public Access) Act 2009 (NSW)
Limitation Act 1969 (NSW), s 56A
Uniform Civil Procedure Rules 2005 (NSW), r 5.3
Cases Cited: AB – CD (No 2) [2019] WASC 301
Bahonko v Sterjov & Ors [2007] FCA 1244
Bahonko v Sterjov [2008] FCAFC 30
Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304
Buswell v Carles [2012] WASC 509
Casley…

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 Jay v Petrikas

Details

AGLC: Jay v Petrikas [2019] NSWDC 707
Case: [2019] NSWDC 707
Decision Date: 28 November 2019

CaseChat Overview and Summary

The case of Jay v Petrikas involved a dispute regarding a defamation claim. The plaintiffs, Jay, sought to extend the limitation period for bringing their claim under the Limitation Act 1969 (NSW). The defendant, Petrikas, opposed the extension and argued that the plaintiffs' application should be dismissed. The matter was heard in the District Court of New South Wales.

The court was required to decide several legal issues, including whether the plaintiffs' amended statement of claim, filed without leave, should be accepted as duly filed under the Civil Procedure Act 2005 (NSW). The court also had to determine whether the plaintiffs' unexplained delays were reasonable and whether an extension of the limitation period should be granted. Furthermore, the court needed to consider whether the plaintiffs' knowledge of the likely contents of the defamation was sufficient to warrant an extension, and whether preliminary discovery was an obvious step that the plaintiffs should have taken.

The court found that the plaintiffs had not demonstrated that it was in the interests of justice to grant the extension of time. The plaintiffs had not sought leave to amend their motion and had filed their amended statement of claim irregularly. Although the court treated the amended statement of claim as duly filed, it refused to grant the extension of time as the plaintiffs had failed to provide sufficient justification for their unexplained delays. The court held that the plaintiffs' knowledge of the likely contents of the defamation was not enough to warrant an extension, and that preliminary discovery was an obvious step that the plaintiffs should have taken. The court concluded that it was not reasonable for the plaintiffs to have delayed past October 2018 after their solicitors had written to the defendants’ solicitors on 8 June 2018 showing an appreciation of their clients’ entitlements to bring an application for preliminary discovery.

The court dismissed the plaintiffs' application for an extension of time and reserved costs with liberty to apply. The parties were given liberty to bring in Short Minutes of Order reflecting a timetable for the conduct of these proceedings in 7 days. Exhibits were retained for 28 days.

Orders

Orders of the court

(1) An order granting leave to the plaintiffs to amend the motion filed 6 September 2019.

(2) An order pursuant to s 63(2) of the Civil Procedure Act 2005 (NSW) that the Amended Statement of Claim lodged for filing on 30 August 2019 be treated as having been duly filed by the District Court Registry at Sydney on that date (30 August 2019).

(3) The plaintiffs’ application pursuant to s 56A(2) of the Limitation Act 1969 (NSW) extending the limitation period provided by s 14B of the Defamation Act 2005 (NSW) so as to commence a claim in defamation against Ms Karen Hodges as set out in the Amended Statement of Claim filed in proceedings No. 2019/72815 is dismissed.

(4) Cost reserved with liberty to apply.

(5) Liberty to the parties to bring in Short Minutes of Order reflecting a timetable for the conduct of these proceedings in 7 days.

(6) Exhibits retained for 28 days.

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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Citations

AGLC Citation

Jay v Petrikas [2019] NSWDC 707

Most Recent Citation

Jay & Ors v Petrikas & Ors (No.2) [2021] NSWDC 512

Cases citing this decision · 2 of 2 shown

Jay & Anor v Petrikas & Ors (No.4)
[2022] NSWDC 628 Para 9

…endant, the plaintiffs unsuccessfully applied for an extension of the limitation period applicable to that action against her [1] . 1. Jay v Petrikas [2019] NSWDC 707…
Jay & Ors v Petrikas & Ors (No.2)
[2021] NSWDC 512 Para 6

…plication by the plaintiffs for an extension of the limitation period to bring defamation proceedings against the fourth defendant was dismissed: [2019] NSWDC 707; the claim brought against the fourth defendant is, like the claim against the other three defendants, for injurious falsehood only.…

View all 2 citing cases →

Cases cited in this decision · 30 of 30 shown

Bahonko v Sterjov
[2008] FCAFC 30 Para 2

…ce complaint records by the Federal Court, both at first instance and on appeal, in Bahonko v Sterjov & Ors [2007] FCA 1244 and Bahonko v Sterjov [2008] FCAFC 30. In those proceedings, the date for publication was not the date the document containing the complaints about the plaintiff’s work performance was made (…
AB v CD [No 2]
[2019] WASC 301 Para 3

…ferring non-party or preliminary discovery, as opposed to requiring a plaintiff to construct the claim and then seek to interrogate: AB – CD (No 2) [2019] WASC 301 at [24]. Nevertheless, there is at least one publication to go on with in this case (namely the statement made by Ms Hodges, the contents of which are…
Zaghloul v Woodside Energy Limited (No 8)
[2019] FCA 971 Para 5

…court or witness statements, and a defence of absolute privilege does not apply to any of these documents ( Zaghloul v Woodside Energy Limited (No 8) [2019] FCA 971).…
Szymczak v Balijepalli (No 2)
[2019] FCA 1093 Para 9

…urt concerning their claim, although such a step was open to them ( Szymczak v Balijepalli [2019] FCA 203 (order made); Szymczak v Balijepalli (No 2) [2019] FCA 1093 (order enforced, including the issuing of an arrest warrant: at [32(2)])).…
Kumar v Secretary, Department of Social Services (No 2)
[2019] FCA 203 Para 9

…iscovery at the same time as seeking directions from the court concerning their claim, although such a step was open to them ( Szymczak v Balijepalli [2019] FCA 203 (order made); Szymczak v Balijepalli (No 2) [2019] FCA 1093 (order enforced, including the issuing of an arrest warrant: at [32(2)])).…
Barrett v TCN Channel Nine Pty Ltd
[2017] NSWCA 304 Para 3

…that the plaintiffs’ delay after the expiry of the limitation period fell squarely within the ratio decidendi of Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304. He formally submitted that the plaintiffs had notice of the existence of the matter complained of approximately five weeks prior to the expiry of the…
Van Garderen v Channel Seven Melbourne Pty Ltd
[2016] VCC 953 Para 1

…upon which the decision should be distinguished; nor did he address me on the arguments set out in Van Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953, although provided with a copy. In view of Mr Richardson’s concessions, I do not propose to set out what arguments could have been raised and instead acc…
State of Queensland v O'Keefe
[2016] QCA 135 Para 29

…the court may have regard to the missing element created by such an event as being relevant in terms of the test. In State of Queensland v O’Keefe [2016] QCA 135 at [30] – [33], where Mullins J (with whom McMurdo JA and Douglas J agreed), making a similar order in circumstances where there were additional factor…
In the matter of Kimberley Diamond Company Limited
[2016] NSWSC 1963 Para 67

…inal proceedings were intertwined with the facts underpinning the defamatory publication; see also Spedding v Dailymail.com Australia Pty Ltd [2016] NSWSC 1963.…
El-Mouelhy v QSociety of Australia Inc (No 4)
[2015] NSWSC 1816 Para 4

…ents arising from the circumstances in which this subpoena was issued and its very broad content (see El-Mouelhy v QSociety of Australia Inc (No 4) [2015] NSWSC 1816 and Buswell v Carles [2012] WASC 509), but Mr Richardson frankly acknowledged that he was not taking any of them (T 8).…
Mr Mark Langdale v KDR Victoria Pty Ltd T/A Yarra Trams
[2015] FWC 4613

…ts that reports commissioned by employers concerning misconduct by employees should be provided to the employees. See Langdale v KDR Victoria Pty Ltd [2015] FWC 4613. 10. The RFS has additional obligations pursuant to the Rural Fires Act 1997 (Rural Fires Act) and the Service Standards that are delegated under the…
Angeleska (known as Slaveska) v State of Victoria
[2015] VSCA 140 Para 3

…courts have warned that there are a number of procedures available to a party, such as pre-action discovery ( Slaveska v State of Victoria and Others [2015] VSCA 140 at [119]-[126] per Warren CJ, Tate JA and Ginnane AJA; Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498 at [22] per Mukhtar AsJ) and/o…
Riske v Oxley Insurance Brokers Pty Ltd (No 2)
[2014] NSWSC 1611 Para 3

…er statement and sought production of the matter complained of at an early stage of the proceedings: Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611.…
Clark v Ibrahim
[2014] VSC 30 Para 1

…od and difficult test are a warning to parties to act promptly: Wookey v Quigley (No 2) [2010] WASC 209 at [82] per Kenneth Martin J; Clark v Ibrahim [2014] VSC 30 at 74 per Zammit AsJ. This is because of the public interest in speedy resolution of defamation actions: Noonan v MacLennan at [67] per Chesterman J.…
Casley v Australian Broadcasting Corporation
[2013] VSCA 182 Para 26

…s an objective one: Noonan v MacLennan (2010) 2 Qd R 537 at [19]-[21]; Lakaev v Denny [2010] NSWSC 1480; Casley v Australian Broadcasting Corporation [2013] VSCA 182 at [72]-[74].…
Buswell v Carles
[2012] WASC 509 Para 4

…which this subpoena was issued and its very broad content (see El-Mouelhy v QSociety of Australia Inc (No 4) [2015] NSWSC 1816 and Buswell v Carles [2012] WASC 509), but Mr Richardson frankly acknowledged that he was not taking any of them (T 8).…
Houda v State of New South Wales
[2012] NSWSC 1036 Para 26

…intiffs is to establish that it was not reasonable to commence proceedings within the first year after publication ( Houda v State of New South Wales [2012] NSWSC 1036 at [14]). The test is an objective one: Noonan v MacLennan (2010) 2 Qd R 537 at [19]-[21]; Lakaev v Denny [2010] NSWSC 1480; Casley v Australian Broa…
Han v Australian Kung Fu (Wu Shu) Federation Inc
[2011] VSC 498 Para 3

…State of Victoria and Others [2015] VSCA 140 at [119]-[126] per Warren CJ, Tate JA and Ginnane AJA; Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498 at [22] per Mukhtar AsJ) and/or interrogatories as to the identification of a publisher ( Kaiser v George Laurens (NSW( Pty Ltd [1982] 1 NSWLR 294).…
Lakaev v Denny
[2010] NSWSC 1480 Para 26

…State of New South Wales [2012] NSWSC 1036 at [14]). The test is an objective one: Noonan v MacLennan (2010) 2 Qd R 537 at [19]-[21]; Lakaev v Denny [2010] NSWSC 1480; Casley v Australian Broadcasting Corporation [2013] VSCA 182 at [72]-[74].…
Wookey v Quigley (No 2)
[2010] WASC 209 Para 1

…the legislation, there is a deliberately short limitation period and difficult test are a warning to parties to act promptly: Wookey v Quigley (No 2) [2010] WASC 209 at [82] per Kenneth Martin J; Clark v Ibrahim [2014] VSC 30 at 74 per Zammit AsJ. This is because of the public interest in speedy resolution of defa…
Pingel v Toowoomba Newspapers Pty Ltd
[2010] QCA 175 Para 27

…The plaintiffs’ evidence must deal with the whole of this specific period of time. In Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [51], Fryberg J explained this obligation as follows:…
Ahmed v Harbour Radio Pty Ltd
[2010] NSWSC 676

…s within time was when the plaintiff was unaware of the publication or the identity of the publisher: see for example Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676. [29] In my view, the question whether it is reasonable or, conversely, not reasonable to commence proceedings entails consideration of more than just…
Rayney v State of Western Australia (No 3)
[2010] WASC 83 Para 30

…satisfy the court that it was not reasonable to commence within one year, then time must be extended ( Rayney v The State of Western Australia (No 3) [2010] WASC 83 at [50]). However, the length of any extension is a matter for the discretion of the court, confined by the scope and purposes of the Limitation Act…
Hatfield v TCN Channel Nine Pty Ltd
[2010] NSWCA 69 Para 76

…riefing note falling within such categories. The document obviously exists, as opposed to a mere possibility (see Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506) and there was clear evidence of reasonable inquiry, in that letters had been written requesting the document and it had not been provided. The appli…
Noonan v MacLennan
[2010] QCA 50 Para 26

…ence proceedings within the first year after publication ( Houda v State of New South Wales [2012] NSWSC 1036 at [14]). The test is an objective one: Noonan v MacLennan (2010) 2 Qd R 537 at [19]-[21]; Lakaev v Denny [2010] NSWSC 1480; Casley v Australian Broadcasting Corporation [2013] VSCA 182 at [72]-[74].…
Hearne v Street
[2008] HCA 36 Para 4

…pears that the plaintiffs’ reason for seeking to add the defamation claim against Ms Hodges to the existing proceedings was to avoid the raising of Hearne v Street (2008) 235 CLR 125 issues, namely use of a document obtained under subpoena to commence other proceedings (T 8). Given the findings I propose to make in relat…
Bahonko v Sterjov
[2007] FCA 1244 Para 2

…iew was taken of the dating of workplace complaint records by the Federal Court, both at first instance and on appeal, in Bahonko v Sterjov & Ors [2007] FCA 1244 and Bahonko v Sterjov [2008] FCAFC 30. In those proceedings, the date for publication was not the date the document containing the complaints about the p…
Johnston v Vintage Developments Pty Limited
[2006] FCAFC 171 Para 1

…Mr Richardson frankly conceded that Johnston v Vintage Developments Pty Ltd [2006] FCAFC 171 undercut all of his arguments on ss 16 and 63, and that the best he could do (T 2) was to ask me not to follow the decision as it is “wrong” (although without specifying the basis upon which it is wrong).In the absence of s…
Christopher George Murtough v Betham
[2004] NSWSC 753 Para 5

…t absolute privilege attaches to a statement for the purposes of defamation but not injurious falsehood ( Richards v Naum at 625; Murtaough v Bentham [2004] NSWSC 753 but cf Gray v Avadis [2003] EWHC 130 (QB)). However, workplace complaints statements are not protected, unlike court or witness statements, and a def…
[1964] 1 QB 620
[1964] 1 QB 620 Para 2

…ions at later dates when it was published to others, such as the investigator and/or other NSW RFS personnel (see, for example, Richards v Naum [1964] 1 QB 620), or even to the plaintiffs’ solicitor, as appears to have been acknowledged in the pleading of the claim (see in particular paragraph 9 of the proposed pl…

Legislation cited in this decision · 7

Civil Procedure Act 2005 (NSW)
16, 63 3 mentions (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
5.3, 5.3(1) 3 mentions (from Para 73)
Defamation Act 2005 (TAS)
14B 2 mentions (from Para 2)
Limitation Act 1969 (NSW)
56A 2 mentions (from Para 1)
Government Information (Public Access) Act 2009 (NSW)
1 mention (from Para 6)
Limitation of Actions Act 1974 (Qld)
1 mention
Rural Fires Act 1997 (NSW)
1 mention

Medium Neutral Citation:	Jay v Petrikas [2019] NSWDC 707
Hearing dates:	31 October 2019
Date of orders:	28 November 2019
Decision date:	28 November 2019
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) An order granting leave to the plaintiffs to amend the motion filed 6 September 2019. (2) An order pursuant to s 63(2) of the Civil Procedure Act 2005 (NSW) that the Amended Statement of Claim lodged for filing on 30 August 2019 be treated as having been duly filed by the District Court Registry at Sydney on that date (30 August 2019). (3) The plaintiffs’ application pursuant to s 56A(2) of the Limitation Act 1969 (NSW) extending the limitation period provided by s 14B of the Defamation Act 2005 (NSW) so as to commence a claim in defamation against Ms Karen Hodges as set out in the Amended Statement of Claim filed in proceedings No. 2019/72815 is dismissed. (4) Cost reserved with liberty to apply. (5) Liberty to the parties to bring in Short Minutes of Order reflecting a timetable for the conduct of these proceedings in 7 days. (6) Exhibits retained for 28 days.
Catchwords:	TORT – defamation – application to pursuant to s 56A(2) Limitation Act 1969 (NSW) to extend the limitation period provided by s 14B of the Defamation Act 2005 (NSW) – limitation period expired on 6 September 2016 – amended statement of claim filed without leave on 30 August 2019 and rejected by the Registry – whether orders should be made for the irregularly filed pleading under ss 16 and 63(2) Civil Procedure Act 2005 (NSW) – whether an extension under s 56A should be granted – whether the court should extend the limitation period to the date the plaintiffs filed the amended statement of claim commencing defamation proceedings or is required to choose the date to which the limitation period is extended – whether there were unexplained delays at a time when the plaintiffs were aware of all the matters related to the defamation – whether plaintiffs’ knowledge of the likely contents of the matter complained of sufficient – plaintiffs warn of an application for preliminary discovery but fail to seek orders - whether preliminary discovery an obvious step – “not reasonable” in the circumstances for the plaintiffs to have delayed past October 2018 after their solicitors had written to the defendants’ solicitors on 8 June 2018 showing an appreciation of their clients’ entitlements to bring an application for preliminary discovery – application for extension of time refused
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 16 and 63 Defamation Act 2005 (NSW), s 14B Government Information (Public Access) Act 2009 (NSW) Limitation Act 1969 (NSW), s 56A Uniform Civil Procedure Rules 2005 (NSW), r 5.3
Cases Cited:	AB – CD (No 2) [2019] WASC 301 Bahonko v Sterjov & Ors [2007] FCA 1244 Bahonko v Sterjov [2008] FCAFC 30 Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304 Buswell v Carles [2012] WASC 509 Casley…