FEDERAL COURT OF AUSTRALIA
KMPG Pty Ltd v Owen [2023] FCA 987
File number: VID 430 of 2022 Judgment of: COLVIN J Date of judgment: 22 August 2023 Catchwords: DEFAMATION - application for extension of time to commence proceedings - where application otherwise out of time by reason of s 15 of the Limitation Act 2005 (WA) - consideration of nature of discretion in extending limitation period - where identity of authors difficult to identify - where need for two applications for discovery - where personal circumstances of applicant relevant - where persistence of applicants in pursuing claims prior to expiration of limitation period - application for extension of limitation period allowed save as to two month period where delay was not reasonable and as such discretion to extend limitation period does not arise Legislation: Competition and Consumer Act 2010 (Cth), Schedule 2 (Australian Consumer Law) s 18
Defamation Act 2005 (WA) s 11
Limitation Act 2005 (WA) ss 15, 40, 43, 44, 79
Cases cited: Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304; (2017) 96 NSWLR 478
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575
Joukhador v Network Ten Pty Ltd [2021] FCAFC 37: (2021) 283 FCR 1
King v Comiskey Management Services Pty Ltd [2020] QCA 229
Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385
Division: General Division Registry: Victoria National Practice Area: Other Federal Jurisdiction Number of paragraphs: 52 Date of hearing: 15 August 2023 Counsel for the Applicants: Mr J Levine Solicitor for the Applicants: Matrix Legal Counsel for the Respondents: Mr CE Chenu Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
VID 430 of 2022 BETWEEN: KMPG PTY LTD
First Applicant
KEREN BRIERS
Second Applicant
AND: KYLIE OWEN
First Respondent
MORGAN OWEN
Second Respondent
ORDER MADE BY:
COLVIN J
DATE OF ORDER:
22 AUGUST 2023
THE COURT ORDERS THAT:
1.Pursuant to s 40(2) of the Limitation Act 2005 (WA) the time in which these proceedings may be commenced is extended until 2 August 2022, save for publications that occurred on and between 2 June and 2 August 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLVIN J:
On 2 August 2022, KMPG Pty Ltd and Ms Keren Briers commenced defamation proceedings in this Court against Ms Kylie Owen and Mr Morgan Owen. KMPG conducts a real estate business in Kalgoorlie in Western Australia under the name Kalgoorlie Metro Property Group (Business). Ms Briers is a practicing real estate agent and a director of KMPG. Ms Owen is a former employee of KMPG and a director of LJ Hooker in Kalgoorlie. Mr Owen is her husband.
KMPG and Ms Briers allege that on or around 5 November…
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- AGLC
- KMPG Pty Ltd v Owen [2023] FCA 987
- Case
- [2023] FCA 987
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether to exercise its discretion to extend the limitation period for commencing the defamation proceedings. Factors considered included the difficulty in identifying the authors of the defamatory publications, the necessity for two discovery applications, and the personal circumstances of KPMG. The persistence of KPMG in pursuing the claims before the limitation period expired also played a crucial role in the court's deliberations.
The court held that the application for an extension of the limitation period was permissible, except for the period between 2 June and 2 August 2021. The court reasoned that while KPMG had shown reasonable diligence in pursuing the claim, the two-month delay was not justified. Consequently, the court allowed the application for an extension of the limitation period, effective until 2 August 2022, but not for the specified two-month period where the delay was deemed unreasonable.
The court's final orders extended the time for KPMG to commence the defamation proceedings to 2 August 2022, with the exception of the two-month period mentioned above. The entry of these orders is governed by Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. Pursuant to s 40(2) of the Limitation Act 2005 (WA) the time in which these proceedings may be commenced is extended until 2 August 2022, save for publications that occurred on and between 2 June and 2 August 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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