Jones v Williams (pseudonyms)

[2018] NSWSC 954

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Jones v Williams (pseudonyms) [2018] NSWSC 954
Hearing dates:	15 June 2018
Decision date:	22 June 2018
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Plaintiff’s application to extend the limitation period in respect of the cause of action pleaded at paragraphs 26 to 38 of the statement of claim refused; plaintiff’s application for leave to file the proposed amended statement of claim served on 7 June 2018 refused; proceedings as against the 4th to 6th defendants dismissed; no order as to costs
Catchwords:	DEFAMATION – application to extend limitation period – plaintiff seeking to sue former parents-in-law and former wife for statements allegedly made to police in anticipation of application for Apprehended Domestic Violence Order – where plaintiff first learned of statements well after they were made – whether any discernible publication within the ultimate limitation period allowed under the Act – further delay in commencing proceedings – whether “not reasonable” to have commenced action within one year – consideration of factors relevant to discretion as to choice of date to which limitation period should be extended
Legislation Cited:	Family Law Act 1975 (Cth), s 121 Limitation Act 1969 (NSW), ss 14B, 56A
Cases Cited:	Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304 Carey v ABC [2010] NSWSC 709
Category:	Procedural and other rulings
Parties:	Mr Jones (plaintiff) Mr A Williams (fourth defendant) Mrs B Williams (fifth defendant) Ms C Williams (sixth defendant)
Representation:	Counsel: Plaintiff self-represented C Amato, A Spies (fourth to sixth defendants)   Solicitors: Corrs Chambers Westgarth (defendants)
File Number(s):	2018/77830
Publication restriction:	These proceedings are concerned with the events of proceedings in the Family Court of Australia. It is an offence contrary to s 121 of the Family Law Act 1975 (Cth) to publish information that identifies persons in connection with such proceedings. In order to maintain the efficacy of that protection, pseudonym and non-publication orders have been made in these proceedings to prohibit the identification of the persons concerned in the Family Court proceedings.

Judgment

1. HER HONOUR: This is an action for defamation arising out of Family Court proceedings concerning the plaintiff's children. It is an offence contrary to section 121 of the Family Law Act 1975 (Cth) to publish information that identifies certain persons in connection with such proceedings. In order to maintain the efficacy of that protection, non-publication and pseudonym orders have been made in these proceedings.

2. The proceedings in the Family Court involved serious allegations and counter-allegations between the plaintiff and the mother of the children, evidently including a belief expressed by the mother that the plaintiff was homicidal and that it was “only a matter of time” before he murdered the children. Similar concerns were explored as to the mental state of the wife. The matter was heard over 11 days in early 2012. At some point after the judge reserved his decision, the plaintiff became aware of a precedent which caused him to be concerned, in the face of the mother’s allegations, as to a risk of long term orders preventing him from having any contact with his children. On 20 July 2012, he removed the children from the Contact Centre where he had been seeing them, leaving a letter to his former wife expressing his concerns and asking her to retract her allegations. At the conclusion of the letter, the plaintiff wrote, “[the children] will be safe and well, and I personally, will not be driving us on any snowy mountain roads.”

3. If, as the letter suggests, the purpose of those acts was to prove that the children were safe with the plaintiff, it backfired. The mother called police, who obtained an ex parte Apprehended Domestic Violence Order. The plaintiff and the children were located by police later that day. The Family Court case was subsequently re-opened to hear evidence of those events, following which the Court made long term orders preventing the plaintiff from having any contact with his children until they turn 18. Further Apprehended Violence Orders have since been made extending over the same period.

4. By these proceedings, the plaintiff seeks to sue his former parents-in-law and former wife for defamatory statements made to a police officer in connection with the Apprehended Domestic Violence Orders. Those defendants are referred to in the proceedings by the assumed family name “Williams” (a pseudonym).

5. The statement of claim was filed on 9 March 2018. The defamation alleged in that pleading consists of oral statements allegedly made in August or September 2015. That aspect of the plaintiff's claim is accordingly out of time. Section 14B of the Limitation Act 1969 (NSW) provides that an action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of one year running from the date of publication of the matter complained of. The first application determined in this judgment is the plaintiff's application made by notice of motion filed on 2 May 2018 to extend the limitation period until the date on which the statement of claim was filed.

6. On 7 June 2018, the plaintiff served a proposed amended statement of claim which seeks to add a cause of action for a further defamatory publication in December 2017 or January 2018. The second issue determined in this judgment is whether the plaintiff should have leave to file the amended pleading (leave was initially sought in respect of a proposed amended statement of claim dated 2 May 2018 but that version was superseded by the further proposed amended statement of claim served on 7 June 2018 and the matter was argued on that basis).

7. A third issue addressed during argument was an application by the defendants to have the proceedings dismissed as an abuse of process. It was common ground that the Court would not need to determine that issue if the plaintiff is unsuccessful on the first two issues.

Application to extend the limitation period

8. The Court's authority to extend the limitation period is found in section 56A of the Limitation Act, which provides:

56A EXTENSION OF LIMITATION PERIOD BY COURT

(1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action.

(2) A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 14B to a period of up to 3 years running from the date of the publication.

(3) A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2).

9. The first task posed by the section is to determine whether to be satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the date of the publication (referred to as the "not reasonable" test). If that test is satisfied, the Court "must" extend the limitation period but not necessarily to the date on which the proceedings were commenced. In choosing the date to which the limitation period should be extended, the Court exercises a discretionary judgment.

10. The nature of that discretion was considered recently by the Court of Appeal in Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304. The decision holds that the discretion as to the length of any extension of the limitation period is a general discretion confined only by the scope and purposes of the Limitation Act and the upper limit of three years. As pointedly emphasised during argument by Ms Amato, who appears for the defendants, it was explained by McColl JA at [81] - [82] of the judgment in Barrett that the rationale for imposing the short limitation period of one year (which is to encourage the prompt commencement and prosecution of defamation proceedings) “does not disappear once the ‘not reasonable’ test is satisfied.” The promptness with which a plaintiff has acted is relevant in choosing the appropriate length of any extension granted.

The pleadings

11. The original statement of claim filed on 9 March 2018 included a claim against Mr Williams for an allegedly defamatory oral statement made "on or prior to 7 May 2017" (the first matter complained of). That claim is within time but is abandoned in the proposed amended pleading. The present application concerns the second matter complained of, which is a claim against the parents-in-law, Mr and Mrs Williams, and the former wife, Ms Williams, in respect of defamatory oral statements allegedly made in or about September 2015 (the second matter complained of). The statements pleaded are:

“It is only a matter of time before [the plaintiff] unlawfully takes [his children] and murders them”; and

“[the plaintiff] has a psychological disorder that will cause him to attempt to murder his children.”

12. The plaintiff says that he first became aware of those statements a year later, on 20 September 2016, while he was cross-examining a police officer during his defence of an application for a further Apprehended Domestic Violence Order.

13. It was not suggested that the plaintiff could have commenced the present action at any point before 20 September 2016. However, the defendants raise a threshold issue as to whether the cross-examination of the police officer in fact disclosed the existence of any discernible cause of action in respect of which the limitation period might appropriately be extended. The transcript of that cross-examination was in evidence before me. The first mention of any statement of the kind pleaded appears at page 18 of the transcript. The relevant exchange began with the following question:

"Have the - any member of the maternal family over the last eight years indicated to you that they believe I'm capable of intentional harm to [the children]”

14. The witness answered “yes”.

15. After an objection, the exchange continued as follows:

Question:   “And that has extended to the risk that I will murder the children, is that correct?”

Answer:    “The family have a great fear that you will abduct the children again and murder them, yes."

16. The plaintiff returned to that topic later (page 25, line 19 of the transcript). It is clear enough from the exchange that follows that the concerns expressed to the police officer were based on the last sentence of the plaintiff's letter dated 20 July 2012 set out above (although that does not appear to have been made clear to the magistrate). At page 27 of the transcript, the police officer was asked for detail as to the circumstances in which those concerns were articulated to him. He said they were expressed by "the entire family" at the police station. The magistrate interrupted to ask when that meeting was. The police officer answered "I've had numerous meetings with this family, your Honour. I can't…"

17. The officer was unable to pinpoint that particular meeting except to agree that it occurred sometime between 2012 and "the latest event" (presumably a reference to an occasion after the expiration of the second apprehended domestic violence order on 1 October 2015, when the plaintiff attended the children's school and had a conversation with a teacher at the school). That event prompted the application for the third Apprehended Domestic Violence Order, which was made in late October 2015.

18. The plaintiff then asked whether it was likely that "some of these conversations would’ve been around the time of the expiry of the previous AVO" (1 October 2015). The witness answered "it's happened throughout the AVO plus since I've been in my role as the domestic violence liaison officer.”

19. The questioning turned to an assertion by the family that the Family Court had found that the plaintiff was homicidal and suicidal. The witness said he was shown the Family Court judgment. He was pressed as to when that occurred (page 32 of the transcript). He was asked whether it was before or after “the expiry of the last AVO” (which was on 1 October 2015). He said "I think I was just prior when they were asking for an extension to the AVO". He was asked, “September, October 2015?” He said "I can't tell you the exact date. I've had numerous meetings with them, as I've already addressed, and what meeting that particular was (sic), I cannot tell you".

20. In fairness to the plaintiff, I should record that it is by no means clear that the police officer had a complete and accurate understanding of the findings of the Family Court. The decision at first instance was not in evidence before me. However, a copy of the decision of the Full Court (dismissing an appeal brought by the plaintiff) was included in a confidential exhibit to the affidavit relied upon by the defendants. As the decision has been published by the Family Court (using pseudonyms), it is not clear why its contents should remain confidential. The decision of the Full Court includes extracts from the decision at first instance which reveal that the matter presented an anxious decision for the judge at first instance; certainly, it does not appear that the orders were based on any unequivocal conclusion as to the plaintiff’s mental state, as the police officer may have understood. The relevant extracts are repeated below:

“341.   By the end of the hearing I was satisfied that a combination of the mother’s mental fragility and the father’s extreme behaviour has led to the development of the beliefs which the mother holds. Having heard the mother give evidence extensively, I have no difficulty in finding that her conviction that the father is an acceptable risk to the children, both in terms of physically harming them or killing them and having sexually abused them and that the children need to be protected from physical and psychological harm being occasioned by their father, are genuinely held beliefs.

…

399.   The father seemed to accept that the scenario of children having unsupervised access to their father (while living with mother) was untenable. He submitted the overwhelming evidence is consistent with this scenario not being an available option. The father pointed out that the independent expert opined “a major problem with such orders would be the impact on the mother’s mental state. I am confident she would have a major psychiatric breakdown which may well lead to her and the children being harmed. At the very least her capacity to parent would be seriously compromised.

…

402.   In the end I am left with a choice between leaving the children with the person to whom they are primarily attached and with whom they are currently secure and securing that relationship by ordering that they have no time with their father on the one hand and on the other, leaving the children with a parent with whom they do not have any primary attachment and eliminating their primary attachment figure from their lives.”

21. In any event, taking the evidence at its highest, the police officer placed the meeting at which he was shown the Family Court judgment as being "just prior" to the expiry of the earlier apprehended domestic violence order on 1 October 2015. However, he also repeatedly stated that he had had many meetings with the family. Further, he gave no clear evidence of any particular defamatory statement made at that meeting.

22. The officer had a lengthy involvement with the Williams family’s complaints. He played no role in the first Apprehended Domestic Violence Order (the ex parte application on 20 July 2012) as the application for that order was made by police officers in a different place, but he was aware of the "final AVO in place up until early October". That was the second order, obtained in October 2013 for a term of two years. The witness had been the domestic violence liaison officer at the relevant police station for some time when that application was made; he began in that role in December 2012 (page 7.20 of the transcript).

23. On my assessment of the evidence, there is a strong probability that the statements pleaded as the second matter complained of were in fact made to the police officer well before September 2015. If they were made before March 2015, the limitation period cannot be extended so as to allow the action to proceed, since the Court can only extend the limitation period mentioned in s 14B of the Limitation Act to a period of “up to 3 years running from the date of the publication”. As already noted, the present action was commenced on 9 March 2018.

24. Even if defamatory statements by the Williams family were repeated to the police officer after March 2015, the evidence established no cogent account of any particular statement on any particular occasion. It follows that the evidence does not establish the probable existence of a cause of action in respect of which an extension of the limitation period would be within the power conferred by s 54B.

25. For those reasons, I am not persuaded that the Court has authority to grant the relief sought. I would dismiss the application on that basis alone. However, in case my doubt in that respect is misplaced, it is appropriate to consider what would have been the fate of the application on the assumption (without making any finding to that effect) that the second matter complained of was published to the police officer in September 2015, as alleged in the proposed amended pleading.

26. Although it is clear from the cross-examination set out above that the plaintiff held suspicions prior to 20 September 2016 that statements to the effect of the second matter complained of had been made to the police officer, I accept he had no firm basis for pursuing a claim in respect of such statements at any point before 20 September 2016. On that basis, I am satisfied that it was not reasonable for the plaintiff to have commenced an action in relation to the second matter complained of at any time before 20 September 2016. Accordingly, assuming (without deciding) that the defamation occurred after March 2015, the Court would be required, in accordance with the curious language of s 54B of the Limitation Act, to extend the limitation period.

27. The more difficult task is to choose the date to which it would be appropriate to extend it.

28. The starting point is to observe that, on any view of the evidence, the limitation period had already expired when the plaintiff became aware of the publication. The relevance of that fact is that, in accordance with the remarks of McColl JA referred to above, the degree of promptness with which the plaintiff acted thereafter is an important consideration in this case. It is relevant in that context to observe that the plaintiff allowed a whole further year (and more) to pass before commencing the proceedings. It is appropriate to consider the plaintiff’s circumstances for the whole of that period (from September 2016 until March 2018).

29. In his affidavit filed together with the notice of motion, the plaintiff explained the delay primarily by reference to his impecuniosity during the relevant period. However, after becoming aware of my decision in Carey v ABC [2010] NSWSC 709, he sought at the hearing to place emphasis on other relevant factors influencing his decision-making process during that time.

30. The affidavit explained that, as at September 2016, there were “grand-parenting” proceedings on foot in the Family Court brought by his parents (and siblings) seeking continued contact with his children. The Williams family opposed the orders sought. The plaintiff stated that, at all relevant times from 20 September 2016 until 20 March 2017, he was fearful of commencing any legal proceedings against them which might jeopardise the grand-parenting proceedings. I accept that was a legitimate concern warranting great caution before commencing the present action.

21. The plaintiff's father died in February 2017. On 20 March 2017, the grand-parenting proceedings were settled on terms allowing continued contact between the plaintiff's mother and the children. The end-date of that explanation is accordingly 20 March 2017.

22. At the hearing of the application, the plaintiff relied on written submissions which included reliance on further matters not addressed in the affidavit. I granted leave to the plaintiff to supplement his evidence by verifying the relevant paragraph of the written submissions.

23. The plaintiff said that, from September 2016 to December 2016, he prioritised a possible appeal against the Apprehended Domestic Violence Order made in September 2016. The order was for a term of over 9 years, evidently intended to coincide with the term of the Family Court parenting orders. I accept that would have been an acute focus for the plaintiff during that time.

24. From September 2016 to March 2017, the plaintiff was also concerned with possible prejudice to the settlement of the Family Court matter (the grand-parenting application). As already indicated, I accept that was a legitimate concern until 20 March 2017.

25. From March 2017 to December 2017, the plaintiff says he was concerned about “possible prejudice to compliance” by his former wife with the settlement agreed with his mother in the grand-parenting proceedings in March 2017. The plaintiff’s evidence on that issue was equivocal at best. He said (at T42), “I was aware if I sued the Williams, would that mean that my former wife would – I’m not saying she would – but the theory was, could that impact contact between my mother and my children.” He said that, by December 2017, based on feedback from his mother and his former wife, that concern had been assuaged. I am not persuaded that was of such concern as to warrant a period of inaction of some 9 months in commencing the proceedings.

26. From April 2017 to 29 January 2018, the plaintiff says he was concerned about “possible prejudice to any future application to amend the apprehended domestic violence order.” A related concern he identified, from around October 2017 to 29 January 2018, was “prejudice, to intention of his letter of 20 Dec 2017".

27. The plaintiff gave evidence about those matters. The burden of the evidence was that, following the introduction of legislation allowing an application to amend the Apprehended Domestic Violence Order, he formed the view that any such application in his case would be unlikely to succeed unless his former wife changed her attitude towards him. On 20 December 2017, he wrote to the Williams family in effect appealing to them to reconsider their position and not to oppose any application to vary the terms of the Apprehended Domestic Violence Order.

28. No doubt there is force in the plaintiff's concern that the commencement of proceedings for defamation against the Williams at that time would in all likelihood have had a negative impact on their preparedness to support any application to amend the Apprehended Domestic Violence Order. Upon reflection, however, I do not think that is a factor to be weighed favourably in the balance for the plaintiff on the present application. It is not a situation where, for example, the plaintiff was attempting to negotiate an out of court settlement of the defamation action itself. Rather, he made a tactical decision to stay his hand. The decision certainly made good sense but the consequent delay cannot be ignored in the present context.

29. A further relevant consideration is the fact that, throughout 2017, the plaintiff pursued other priorities. In April 2017, he reached an agreement with his mother, who wished to rearrange her financial affairs, as a result of which (among other things) she agreed to make $20,000 available to him in the future to acquire a replacement car if needed. With his mother's concurrence, the plaintiff subsequently applied the major part of that sum to his campaign as an independent candidate in both the inaugural Edward River Council election and the Murray State by-election, held respectively in about July and September 2017.

30. In summary, there was a period of inaction for almost a whole year during which, assessed against the rationale for the limitation period, there was no good reason not to prosecute the defamation action. In my view, there is little warrant for extending the limitation period in this case much beyond the end of March 2017. I accept that some allowance might be made for a period of reflection after the grand-parenting proceedings were resolved and for the taking of practical steps after that date but, had it been necessary to decide this issue, I would not have extended the limitation period beyond 30 June 2017.

Application for leave to amend

41. The proposed further amended statement of claim seeks to include a further publication (which would not be statute barred) based on the defendants’ response to the plaintiff's letter dated 20 December 2017 considered above.

42. The alleged further publication is pleaded in paragraph 33 of the proposed amended pleading as follows:

“In December 2017 or January 2018, Senior Constable Paul Ebsworth telephoned the Fourth, Fifth and Sixth defendants to inquire of any "change in their position" in the context of the Plaintiff's letter. The Sixth Defendant said to Senior Constable Ebsworth words to the effect: "Our position is unchanged".”

43. I do not think a pleading in those terms is capable of amounting to a defamatory publication. I accept, as submitted by Ms Amato, that the proposed pleading is hopeless and that leave should be refused for that reason.

Abuse of process

44. For completeness, I should record that, had it been necessary to decide whether the proceedings amount to an abuse of process, I would not have dismissed the proceedings on that basis. Certainly, it may be accepted that the plaintiff's purpose in bringing these proceedings is aligned with his object of having the Apprehended Domestic Violence Order discharged or varied. The fact that the two objects coincide does not, in my view, derogate from the propriety of the plaintiff's purpose in prosecuting this action to vindicate his reputation against the very serious imputations made about him by his former wife and parents-in-law.

45. However, for the reasons explained above, I am of the view that the existing claim is out of time and that there is no authority to extend the limitation period for that claim. Even if that is wrong, I am not persuaded that it would be appropriate to extend the limitation period for the term necessary to enable the action to proceed. I am further persuaded that the proposed amendment is hopeless. It follows that the proceedings must be dismissed. I note that the defendants seek no order as to costs.

46. For those reasons, I make the following orders:

1. The plaintiff’s application to extend the limitation period in respect of the cause of action pleaded at paragraphs 26 to 38 of the statement of claim is refused;

2. The plaintiff’s application for leave to file the proposed amended statement of claim served on 7 June 2018 is refused;

3. The proceedings as against the 4th to 6th defendants are dismissed.

47. I make no order as to costs.

**********

Amendments

23 July 2018 - incorrect date on coversheet

Decision last updated: 23 July 2018