JUDGE:	JOHN DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	12-13 September 2017
DATE OF JUDGMENT:	4 October 2017
CASE MAY BE CITED AS:	Johnston v Holland (No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 597

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DEFAMATION – Limitation of action – Extension of time application – Appeal from associate judge – Whether plaintiff established that it was not reasonable to have commenced a proceeding within one year of the date of publication – Nature of the court’s discretion as to the period of extension when satisfied that it was not reasonable – Proper construction of enabling section – Limitation of Actions Act 1958 (Vic) ss 5 (1AAA) and 23B.

DEFAMATION – Pleadings – Whether proposed amendment of statement of claim sufficiently alleged that the defendant published the defamatory matter.

LIMITATION OF ACTIONS – Defamation - Extension of time application – Appeal from associate judge – Whether plaintiff established that it was not reasonable to have commenced a proceeding within one year of the date of publication – Nature of the court’s discretion as to the period of extension when satisfied that it was not reasonable – Proper construction of enabling section – Limitation of Actions Act 1958 (Vic) ss 5 (1AAA) and 23B.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Collins QC with Mr A Anderson	M+K Lawyers
For the Defendant	Mr J Castelan	HWL Ebsworth Lawyers
For Wayne Murray	Mr T Borgeest	Slater & Gordon Ltd

HIS HONOUR:

Introduction

The plaintiff appeals the judgment of an associate judge refusing an application brought under s 23B of the Limitation of Actions Act 1958 (Vic) (‘the Act’) to extend the limitation period and to permit him to join Wayne Murray as a second defendant to a proceeding and refusing him leave to amend his statement of claim.[1] The background to and facts of this proceeding are sufficiently set out in his Honour’s judgment, and I will not reiterate or add to them except where necessary. They are not presently in dispute.
[1]Johnston v Holland [2017] VSC 448 (‘Reasons’).

The plaintiff is the principal of The Peninsula School in Mount Eliza, Victoria and the defendant is a former director of marketing at the School and a parent of students or former students who attended the school. The plaintiff sues for damages for defamation arising from a series of ‘tweets’ (to approximately 26 followers) and an email (to at least 30 recipients) published on 2 April 2015 to the staff, parents and students of the School. The plaintiff proposes to allege that Murray was the author and publisher of the email.

The plaintiff seeks that:

(a) Wayne Murray be added as the second defendant to the proceeding;

(b) the limitation period for the plaintiff’s cause of action in defamation against Wayne Murray be extended under section 23B(1) of the Act;

(c) 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 (No 2)

Details

AGLC: Johnston v Holland (No 2) [2017] VSC 597
Case: [2017] VSC 597
Decision Date: 4 October 2017

CaseChat Overview and Summary

The case of Johnston v Holland (No 2) involves a defamation action brought by the plaintiff, Johnston, against the defendant, Holland. The plaintiff sought an extension of the limitation period for bringing the action, which had originally expired. The case was heard in the Supreme Court of Victoria. The central issues in this appeal were whether the plaintiff had demonstrated that it was not reasonable to have commenced the proceeding within the one-year limitation period, and whether the court had properly exercised its discretion in granting an extension of time under the Limitation of Actions Act 1958 (Vic).

The legal issues primarily concerned the interpretation and application of section 5(1AAA) and section 23B of the Limitation of Actions Act 1958 (Vic). The court was required to determine whether the plaintiff had met the threshold requirement of establishing that it was not reasonable to have commenced the proceeding within the statutory period. Additionally, the court had to consider the nature of its discretion in granting an extension of time, and whether the enabling section had been correctly applied. Another issue was whether the proposed amendment to the statement of claim sufficiently alleged that the defendant had published the defamatory matter.

The court found that the plaintiff had established that it was not reasonable to have commenced the proceeding within the statutory limitation period. The court determined that the associate judge had properly exercised its discretion in granting an extension of time. The court clarified the nature of its discretion in such cases, noting that it should be exercised judiciously and in accordance with the enabling provisions of the Act. The court also held that the proposed amendment to the statement of claim sufficiently alleged the publication of the defamatory matter by the defendant. The appeal was dismissed.

The court did not make any further orders beyond dismissing the appeal. The plaintiff’s defamation action was allowed to proceed, subject to the terms of the extension granted by the associate judge. The court’s decision provides guidance on the application of the limitation provisions in defamation cases and the court’s discretion in extending the limitation period.

Orders