Johnston v Holland - [2016] VSC 340

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:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 June 2016
DATE OF RULING:	16 June 2016
CASE MAY BE CITED AS:	Johnston v Holland
MEDIUM NEUTRAL CITATION:	[2016] VSC 340

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PRACTICE AND PROCEDURE – Application for oral examination of the defendant – Application for preliminary discovery – Whether or not plaintiff has made reasonable enquiries to ascertain identity of prospective defendant – Whether or not person likely to have knowledge of facts or possession of documents – exercise of discretion – Supreme Court (General Civil Procedure) Rules 2015 O. 32.03, 32.04.

DEFAMATION – Limitation of action – Extension of time – Whether or not reasonable in the circumstances for the plaintiff to have commenced a proceeding against prospective defendant within one year from date of publication – Limitations of Actions Act 1958 ss 5(1AAA), 23B.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	A. Anderson	MacPherson Kelly
For the Defendant	J. Castelan	HWL Ebsworth Lawyers

HIS HONOUR:

The plaintiff has instituted proceedings against the defendant for defamation. In short, he alleges he was defamed in a Twitter account with the handle ‘@TanPersonSays’. The defendant, in her defence to this proceeding, admits that she authored and uploaded a series of these ‘tweets’ using the pseudonym ‘Tan Twat’ and the handle ‘@TanPersonSays’. A further allegedly defamatory publication was sent by email from an address ‘notthetannedtwat@gmail.com’ on 2 April 2015. It is signed by ‘Mr T’. The defendant denies publication of that email, and further denies that she knows the identity of the email’s author.

On 7 June 2016, the plaintiff issued a summons seeking the following orders:

1.An order that the Defendant attend before the Court to be orally examined in relation to the description of the publisher or publishers of an email from ‘Tan Twat’ to ‘Undisclosed-recipients’ titled ‘Some good news!’ dated 01/04/2015 07:09 (‘the person or persons concerned’). This is the email which is Exhibit ‘ZCS-1’ of the affidavit of Zoe Schwarz dated 7 June 2016 (‘the Email’);
2.An order that the Defendant make discovery of all documents which are or have been in her possession relating to the description of the person or persons concerned including (without limitation) the following documents or categories of documents:
(a)an electronic copy of the Email and a copy of the header and the IP address the Email was sent from;
(b)documents concerning, referring to, recording or evidencing the publication of the Email or the content or proposed content of the Email;
(c)documents concerning, referring to, recording or evidencing the publication of the email from notthetannedtwat@gmail.com to undisclosed recipients titled ‘strength in numbers!!!’ at approximately 7.09 pm on 26 March 2015.
(d)documents concerning , referring to, recording or evidencing the creation of the email address notthetannedtwat@gmail.com or the process and authorisation required to send emails from notthetannedtwat@gmail.com;
(e)documents concerning, referring to, recording or…

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 [2016] VSC 340
Case: [2016] VSC 340
Decision Date: 16 June 2016

CaseChat Overview and Summary

The matter before the court was an application by the plaintiff for leave to examine the defendant prior to trial and for leave to make preliminary discovery in the context of a defamation claim. The plaintiff, Johnston, was seeking to sue the defendant, Holland, for defamatory statements made about Johnston. The court was required to determine whether Johnston had made reasonable inquiries to ascertain the identity of Holland, and whether Holland was likely to possess knowledge of facts or documents relevant to the case. The case was heard in the Supreme Court of Victoria.

The primary legal issues were whether Johnston had exercised due diligence in locating Holland and whether Holland was likely to have knowledge of the facts or documents relevant to the case. The court was also required to consider whether the plaintiff had a reasonable excuse for not commencing the action within the statutory time limit. The court had to assess the application under the Supreme Court (General Civil Procedure) Rules 2015 and the Limitations of Actions Act 1958.

The court found that Johnston had made reasonable inquiries to locate Holland and that Holland was likely to have knowledge of facts or documents relevant to the case. The court noted that Johnston had conducted extensive research and had made efforts to locate Holland, including using social media and professional directories. The court also found that it was reasonable for Johnston to have commenced the action within the statutory time limit, given the circumstances of the case. The court granted the plaintiff's application for leave to examine the defendant and for leave to make preliminary discovery.

The court ordered that the defendant be examined prior to trial and that the plaintiff be granted leave to make preliminary discovery. The court also ordered that the plaintiff's application for an extension of time to commence the proceeding be granted. The court noted that the defendant had not opposed the application for an extension of time and that it was in the interests of justice to grant the application. The court also ordered that the defendant provide the plaintiff with any documents in their possession or control that were relevant to the case.

Orders