(1) The plaintiff’s application for an extension of the limitation period to bring proceedings for defamation for the claims in paragraphs 25 – 29, 31 – 35 and 37 – 39 of the statement of claim is refused.
(2) The plaintiff’s claims for defamation in paragraphs 25 – 29, 31 – 35 and 37 - 39 of the statement of claim against the first and third defendants are struck out and dismissed.
(3) The plaintiff’s notice of motion filed on 18 December 2024 for default judgment is dismissed with costs and the plaintiff is stayed from making any further application for default judgment until such time as any of the defendants have failed to comply with court orders to file a defence by a particular date.
(4) The plaintiff’s claim for the tort of intimidation (paragraphs 30 and 36 of the statement of claim) is struck out with leave to replead.
(5) The plaintiff’s amended statement of claim deleting the defamation claims and repleading the tort of intimidation claim is to be filed within 28 days and to be accompanied by a Statement of Particulars conformably with UCPR r 15.12.
(6) These proceedings removed from the Defamation List and placed in the General List, with a return date of 7 March 2025 before the Judicial Registrar for a timetable, such timetable to include any orders for the filing of defences.
(7) Pursuant to UCPR r 42.20, the plaintiff is to pay the first and third defendants’ costs of this application and of the defamation proceedings.
Catchwords:
TORT – claims for defamation, assault and intimidation – application for summary dismissal of the defamation claims - whether a valid concerns notice was filed for the defamation claims – whether an extension of time should be granted for the claims, all of which were commenced more than 12 months after publication – all defamation claims struck out – remaining causes of action referred to the General List
[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.
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AGLC
Kelly v UNSW [2025] NSWDC 24
Case
[2025] NSWDC 24
Decision Date
CaseChat Overview and Summary
In the matter of Kelly v UNSW, the plaintiff sought to bring claims for defamation, assault, and intimidation against the defendants. The proceedings were brought in the Federal Circuit and Family Court of Australia, and the defendants applied for summary dismissal of the defamation claims on the basis that the plaintiff had not filed a valid concerns notice within the requisite period. Additionally, the defendants argued that the claims were statute-barred as they were commenced more than 12 months after the alleged defamatory publications.
The court was required to determine whether the plaintiff's concerns notice was valid and whether an extension of the limitation period should be granted. The court found that the concerns notice was invalid as it did not comply with the statutory requirements. Furthermore, the court held that the plaintiff's claims were statute-barred as they were brought more than 12 months after the alleged defamatory publications, and no extension of time was warranted. The court also determined that the plaintiff's claim for intimidation should be struck out with leave to replead, and that the proceedings should be transferred to the General List for further management.
Accordingly, the court dismissed the plaintiff's application for an extension of the limitation period, struck out and dismissed the defamation claims, and struck out the claim for intimidation with leave to replead. The court ordered that the plaintiff's amended statement of claim be filed within 28 days, accompanied by a Statement of Particulars. The proceedings were removed from the Defamation List and placed in the General List, with a return date set for 7 March 2025. Finally, the court ordered that the plaintiff pay the first and third defendants' costs of the application and of the defamation proceedings.
Orders
Orders of the court
(1) The plaintiff’s application for an extension of the limitation period to bring proceedings for defamation for the claims in paragraphs 25 – 29, 31 – 35 and 37 – 39 of the statement of claim is refused.
(2) The plaintiff’s claims for defamation in paragraphs 25 – 29, 31 – 35 and 37 - 39 of the statement of claim against the first and third defendants are struck out and dismissed.
(3) The plaintiff’s notice of motion filed on 18 December 2024 for default judgment is dismissed with costs and the plaintiff is stayed from making any further application for default judgment until such time as any of the defendants have failed to comply with court orders to file a defence by a particular date.
(4) The plaintiff’s claim for the tort of intimidation (paragraphs 30 and 36 of the statement of claim) is struck out with leave to replead.
(5) The plaintiff’s amended statement of claim deleting the defamation claims and repleading the tort of intimidation claim is to be filed within 28 days and to be accompanied by a Statement of Particulars conformably with UCPR r 15.12.
(6) These proceedings removed from the Defamation List and placed in the General List, with a return date of 7 March 2025 before the Judicial Registrar for a timetable, such timetable to include any orders for the filing of defences.
(7) Pursuant to UCPR r 42.20, the plaintiff is to pay the first and third defendants’ costs of this application and of the defamation proceedings.