Knight v Ippoliti - [2020] VSC 286

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S ECI 2020 00933

RACHEL KNIGHT	Plaintiff
v
FABIAN IPPOLITI	Defendant

---

JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21 May 2020
DATE OF JUDGMENT:	29 May 2020
CASE MAY BE CITED AS:	Knight v Ippoliti
MEDIUM NEUTRAL CITATION:	[2020] VSC 286

---

LIMITATION OF ACTIONS – Defamation –Application by the plaintiff for an extension of time under s 23B of the Limitations of Actions Act 1958 (Vic) – Plaintiff alleged defendant had defamed her by posting a negative review on a website for rating medical practitioners – Plaintiff issued a proceeding in California to establish the identity of the defendant – Whether the plaintiff has established that it was not reasonable to have commenced the proceeding within one year of the date of publication – lengthy periods of unexplained delay – Plaintiff’s application dismissed – Casley v Australian Broadcasting Corporation [2013] VSC 251, and Brott v FGD Pty Ltd [2018] VSC 182, referred to and applied.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D P Gilbertson SC	HWL Ebsworth Lawyers
For the Defendant	Ms G L Schoff QC with Mr D Ternovski	Lander & Rogers Lawyers

HER HONOUR:

Introduction

This proceeding concerns an anonymous review concerning the plaintiff, Dr Rachel Knight, posted on a US website, (‘RateMDs website’) on or about 1 April 2018. Dr Knight is a gynaecologist who provides fertility treatment, including invitro fertilisation (‘IVF’) treatment . The review on the RateMDs website stated ‘I didn’t have a very good experience with Dr Knight or Melbourne IVF seemed like it was a money making venture for the clinic’. The review also gave the plaintiff one star out of five for ‘staff’, ‘punctuality’, ‘helpfulness’, and ‘knowledge’. The review was available on the RateMDs website from about 1 April 2018 until about 31 May 2018, when the operator of the RateMDs website, a company domiciled in California, removed the review following a request made by Dr Fleur Cattrall, a colleague of the plaintiff, on 29 May 2018.

In the plaintiff’s statement of claim, she alleged that the review carried the imputations that:

(a) the plaintiff does not care about her patients’ welfare;

(b) the plaintiff’s only motivation in providing IVF services is to make money for the clinic;

(c) the plaintiff does not have sufficient knowledge to provide IVF services;

(d) patients seeking IVF services should avoid the plaintiff because they will not have a good experience;

(e) the plaintiff engages in poor management of her staff;

(f) the plaintiff does not attend consultations on time; and

(g) the plaintiff is unhelpful to her patients.

The plaintiff claims damages, including aggravated damages, on the basis that the review was published by the defendant, who is the husband of a competitor of the plaintiff.

The defendant, described in the writ and statement of claim as Mr Fabian Ippoliti, is indeed the husband of another provider of fertility services (including IVF treatment), Dr…

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 Knight v Ippoliti

Details

AGLC: Knight v Ippoliti [2020] VSC 286
Case: [2020] VSC 286
Decision Date: 29 May 2020

CaseChat Overview and Summary

In Knight v Ippoliti, the plaintiff sought an extension of time to commence proceedings for defamation against the defendant, who had posted a negative review of her on a website for rating medical practitioners. The plaintiff issued proceedings in California to ascertain the identity of the defendant, which led to delays in bringing the action in Victoria. The primary legal issue for the court to determine was whether the plaintiff could establish that it was not reasonable to have commenced the proceeding within one year of the publication date, given the circumstances of the case.

The court examined the factors relevant to determining whether the plaintiff had established the necessary criteria for an extension of time under section 23B of the Limitations of Actions Act 1958 (Vic). It considered the plaintiff's unexplained delays and the impact on the defendant's ability to mount a fair defence. The court referred to previous cases, including Casley v Australian Broadcasting Corporation and Brott v FGD Pty Ltd, which provided guidance on the application of the statutory provisions. The court found that the plaintiff had not adequately justified the lengthy delays, and the defendant's right to a fair trial was prejudiced by the late commencement of the proceedings.

As a result, the court dismissed the plaintiff's application for an extension of time. The court emphasised the importance of adhering to the statutory limitation periods and the need for plaintiffs to act promptly in bringing their claims. The decision underscores the principle that unexplained delays in initiating legal proceedings may result in the loss of the right to seek relief, particularly when such delays impact the defendant's ability to mount a fair defence. The court's reasoning reflects the balance between protecting the rights of defendants and ensuring that plaintiffs do not unduly delay the commencement of proceedings.

Orders