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Johnston v Holland

Johnston v Holland

Case [2017] VSC 448 8 August 2017

Defamation

Limitation Periods

Appeal

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2015 06004

STUART JOHNSTON	Plaintiff
v
NICOLA HOLLAND	Defendant

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June 2017
DATE OF JUDGMENT:	8 August 2017
CASE MAY BE CITED AS:	Johnston v Holland
MEDIUM NEUTRAL CITATION:	[2017] VSC 448

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DEFAMATION – Limitation of action – Extension of time application – Whether not reasonable in the circumstances for the plaintiff to have commenced proceeding within one year from date of publication – Limitation of Actions Act1958, ss 5(1AAA) and 23B – Noonan v MacLennan [2010] 2 Qd R 537; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; Jamieson v Chiropractic Board of Australia [2011] QCA 56; Wookey v Quigley (No 2)(2010) WASC 209; Casley v Australian Broadcasting Corporation [2013] VSC 251; Casleyv Australian Broadcasting Corporation [2013] VSCA 182 – Pleadings – Whether proposed pleading against defendant and proposed defendant sufficient.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Anderson	Macpherson Kelley
For the First Defendant	Mr J Castelan	HWL Ebsworth
For the proposed Second Defendant	Mr J Kirkwood	Slater and Gordon Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Summary of conclusions................................................................................................................... 1

Background......................................................................................................................................... 2

Extending the limitation period...................................................................................................... 4

Applicable law.............................................................................................................................. 4
The Evidence................................................................................................................................. 9
The circumstances advanced by the plaintiff......................................................................... 10
Plaintiff’s submissions- the Email and the Tweets....................................................... 15
Murray’s submissions –the Email and the Tweets....................................................... 15
The defendant’s submissions – The Email.................................................................... 17

Consideration.............................................................................................................................. 18
The Email – The First Limb of s 23B of the LAA.......................................................... 18
Matters supporting satisfaction of the test.................................................................... 18
Matters against satisfaction of the test............................................................................ 21
The Email – The Second Limb of s 23B of the LAA...................................................... 25
The Tweets.......................................................................................................................... 28

The Pleading Points......................................................................................................................... 31

Costs in the discovery application................................................................................................ 41

Conclusion......................................................................................................................................... 43

HIS HONOUR:

Introduction

The plaintiff applies under s 23B of the Limitation of Actions Act1958 (‘the LAA’) to extend the applicable limitation period to add Wayne Murray (‘Murray’) as a defendant to this defamation proceeding. For that purpose, the plaintiff also seeks leave to file and serve a further amended statement of claim.[1] In the proposed further amended statement of claim (‘PFASOC’) the plaintiff proposes to allege that Murray defamed the plaintiff in an email he wrote and sent on 2 April 2015 (‘the Email’) and in various tweets (‘the Tweets’) he is alleged to have been involved in publishing between 9 February 2015 and 30 June 2015.[2]
[1]By summons filed 21 February 2017.
[2]The PFASOC is exhibit ZCS-1 to the affidavit of Zoe Claire Schwarz dated 21 February 2017.

Murray opposes the extension of the limitation period. If it is extended, he objects to the PFASOC as embarrassing. The defendant opposes the filing of the PFASOC on the basis that various paragraphs are embarrassing. The defendant and Murray contend that the plaintiff’s application should be dismissed with costs.

There is also an issue of costs concerning 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 Johnston v Holland

Details

AGLC: Johnston v Holland [2017] VSC 448
Case: [2017] VSC 448
Decision Date: 8 August 2017

CaseChat Overview and Summary

Johnston v Holland was a matter heard in the Supreme Court of Victoria. The plaintiff, Johnston, sought damages for defamation against the defendant, Holland, and an associated entity, which was later dismissed as a party. The crux of the dispute centred around statements made in a blog post and subsequent social media posts by Holland, which Johnston claimed were defamatory. The dispute reached the court as Johnston sought an extension of time to commence proceedings and, subsequently, an amendment to the pleadings to include the associated entity as a party to the action.

The court was tasked with determining whether Johnston's delay in commencing proceedings was reasonable, given the circumstances, under sections 5(1AAA) and 23B of the Limitation of Actions Act 1958. The court considered whether the plaintiff had acted with reasonable diligence in ascertaining the defamatory content and its impact, and if there were any exceptional circumstances justifying the delay. The court also had to assess the adequacy of the proposed pleadings, particularly whether they were sufficient to frame the issues between Johnston and the defendants.

In delivering judgment, the court held that the plaintiff had not demonstrated sufficient grounds for an extension of time. The court found that Johnston had not acted with reasonable diligence in bringing the action within the statutory period. The plaintiff's awareness of the defamatory statements and their impact should have prompted a timely legal response. Furthermore, the court ruled that the proposed pleadings against the associated entity were not sufficient as they failed to adequately frame the issues against the entity. Consequently, the court dismissed the application for an extension of time and denied the amendment to the pleadings.

The final orders of the court were that the plaintiff's application for an extension of time to commence proceedings was dismissed. Additionally, the court dismissed the application to amend the pleadings to include the associated entity as a party. These decisions effectively precluded Johnston from proceeding with the defamation claim against Holland and the associated entity on the grounds presented.

Orders