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KMPG Pty Ltd v Owen

KMPG Pty Ltd v Owen

Case [2023] FCA 987 22 August 2023

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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

Meyer v Solomon [2021] WASCA 168

Rayney v State of Western Australia (No 3) [2010] WASC 83

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…

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 KMPG Pty Ltd v Owen

Details

AGLC: KMPG Pty Ltd v Owen [2023] FCA 987
Case: [2023] FCA 987
Decision Date: 22 August 2023

CaseChat Overview and Summary

KPMG Pty Ltd initiated legal proceedings against Owen in the Federal Court, seeking damages for defamation. The dispute arose from allegedly defamatory publications made by Owen, which KPMG claimed had damaged its reputation. Given the nature of the defamation claim, the limitation period under the Limitation Act 2005 (WA) was a significant concern. KPMG's application to commence proceedings was out of time, necessitating an extension under section 40(2) of the Act.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

KMPG Pty Ltd v Owen [2023] FCA 987

Most Recent Citation

Owen v KMPG Pty Ltd [2023] FCA 1508

Cases citing this decision · 2 of 2 shown

Owen v KMPG Pty Ltd
[2023] FCA 1508 Para 2

…That interlocutory application substantially succeeded: KMPG Pty Ltd v Owen [2023] FCA 987 (Colvin J; hereafter, the “ Primary Judgment ”). The learned primary judge granted relief under s 40(2) of the Limitation Act , extending—in ways that needn’t now be particularised—the limitation period otherwise applicable…
Woolf v Brandt
[2023] NSWDC 460 Para 1

…KMPG Pty Ltd v Owen [2023] FCA 987: The applicant was granted an extension of time under s 40(2) of the Limitation Act 2005 (WA) until 2 August 2022, save for publications that occurred on and between 2 June and 2 August 2021. Unfortunately, this decision is of no assistance. Although some publications were made…

View all 2 citing cases →

Cases cited in this decision · 10 of 10 shown

Lehrmann v Network Ten Pty Limited (Limitation Extension)
[2023] FCA 385 Para 25

…at is meant by objective circumstances, I respectfully agree with what was said by Lee J in Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385 at [13]‑[16] about not overcomplicating matters. The statutory language must be given effect. As has been noted, it requires the court to reach an ov…
Meyer v Solomon
[2021] WASCA 168 Para 13

…t has a discretion as to the length of any such extension. The matters that bear upon the nature of that extension were considered in Meyer v Solomon [2021] WASCA 168 which concerned an appeal against a refusal of an extension application. The primary judge had held that it was not reasonable for defamation proceed…
King v Comiskey Management Services Pty Ltd
[2020] QCA 229 Para 22

…The same approach was adopted in King v Comiskey Management Services Pty Ltd [2020] QCA 229 at [14] (Fraser JA, McMurdo JA and Jackson J agreeing).…
Joukhador v Network Ten Pty Limited
[2020] FCA 746 Para 24

…tances for the party seeking relief to have commenced proceedings within one year of publication. In Joukhador v Network Ten Pty Ltd [2021] FCAFC 37; (2021) 283 FCR 1, a Full Court (Rares, Wigney and Bromwich JJ) considered at [49]‑[60] what was required in undertaking an evaluation of the character. The following…
Barrett v TCN Channel Nine Pty Ltd
[2017] NSWCA 304 Para 21

…However, the approach of Buss P finds support in the reasoning of McColl JA (Simpson and Payne JJA agreeing) in Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304; (2017) 96 NSWLR 478 at [79]‑[82] in respect of a similarly worded provision (being s 56A of the Limitation Act 1969 (NSW)). Also, as her Honour noted,…
Rayney v State of Western Australia (No 3)
[2010] WASC 83 Para 11

…As to the hurdle imposed by s 40(2), in Rayney v State of Western Australia (No 3) [2010] WASC 83 at [41], Martin CJ said: That is a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances such as, for example, the plaintiff being unaware of the publication within the period of on…
Noonan v MacLennan
[2010] QCA 50 Para 11

…commenced within the period of one year rests with the plaintiff, and as the Court of Appeal of Queensland observed in the case of Noonan v MacLennan [2010] QCA 50, the burden that must be discharged is to establish that it was not reasonable to have commenced within one year. It is not a burden which is dischar…
Dow Jones & Co Inc v Gutnick
[2002] HCA 56 Para 8

…Every publication founds a separate cause of action: Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 at [26]‑[27] (Gleeson CJ, McHugh, Gummow and Hayne JJ). Therefore, each has its own limitation period. This gives rise to some complexities as to the precise form of the present application wh…
Brisbane South Regional Health Authority v Taylor
[1996] HCA 25 Para 21

…exercise of powers to extend limitation periods as articulated by McHugh J (Dawson J agreeing) in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, where his Honour said at 553-554: A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice o…
Joukhador v Network Ten Pty Ltd
[2021] FCAFC 37 Para 24

…n all the circumstances for the party seeking relief to have commenced proceedings within one year of publication. In Joukhador v Network Ten Pty Ltd [2021] FCAFC 37; (2021) 283 FCR 1, a Full Court (Rares, Wigney and Bromwich JJ) considered at [49]‑[60] what was required in undertaking an evaluation of the charact…

Legislation cited in this decision · 5

Limitation Act 2005 (WA)
15, 40, 43, 44, 79 6 mentions (from Para 4)
Defamation Act 2005 (TAS)
11 2 mentions (from Para 5)
Competition and Consumer Act 2010 (Cth)
1 mention
Federal Court Rules 2011 (Cth)
1 mention
Limitation Act 1969 (NSW)
1 mention (from Para 21)

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 Meyer v Solomon [2021] WASCA 168 Rayney v State of Western Australia (No 3) [2010] WASC 83
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

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	22 AUGUST 2023