Lakaev v Denny

[2010] NSWSC 1480

CITATION:	Lakaev v Denny [2010] NSWSC 1480
HEARING DATE(S):	23 August 2010
JUDGMENT DATE :	17 December 2010
JUDGMENT OF:	Fullerton J
DECISION:	1. The plaintiff’s notice of motion is dismissed. 2. The plaintiff is to pay the defendants' costs.
CATCHWORDS:	DEFAMATION - application to extend the one year limitation period for commencing defamation action proscribed by s 14B of the Limitation Act 1969 - power to grant extension conferred by s 56A of the Act - construction of the reasonableness test in ss (2) - construction of the power to grant an extension “up to a period of 3 years” - establishing when publication occurs in the context of online blogging
LEGISLATION CITED:	Defamation Act 2005 Limitation Act 1969 Limitation of Actions Act 1974 (Qld)
CATEGORY:	Principal judgment
CASES CITED:	Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 Carey v ABC [2010] NSWSC 709 Dow Jones v Gutnick [2002] HCA 56; 210 CLR 575 Noonan v MacLennan [2010] QCA 50 Pingle v Toowoomba Newspapers Pty Ltd [2010] QCA 175
PARTIES:	Natasha Lakaev (Plaintiff) Annette Denny (1st Defendant) Warren Denny (2nd Defendant)
FILE NUMBER(S):	SC 2010/55205
COUNSEL:	M White/F Ramsay (Plaintiff) M Richardson (Defendants)
SOLICITORS:	Bruce Macdonald Lawyers (Plaintiff) Johnson Winter & Slattery (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

FULLERTON J

17 DECEMBER 2010

2010/55205 NATASHA LAKAEV v ANNETTE DENNY & ANOR

JUDGMENT

: By statement of claim dated 3 March 2010 the plaintiff seeks an award of damages for what are alleged to be a series of defamatory publications published by the defendants, initially by email to various named recipients in March 2007 and then later that year on two internet websites, on one of which the defamatory material remained accessible until June 2010. It is also alleged that in June and December 2007 the defendants (or one of them), using a pseudonym, posted defamatory material on a “blog” attaching to that website. In total there are three separate actionable defamations identified in the pleadings.

The matters complained identified of by reference to the plaintiff’s statement of claim

2 On 15 and 16 March 2007 the defendants allegedly published a document entitled “Close Encounters with Universal Knowledge” to various named individuals by email (“the email publications”). This is identified in the pleadings as “the first matter complained of”. The earlier of these two emails was accompanied by a request to one of the recipients to republish the material on a website known as the “Cult Information and Family Support” website (“the CIFS website”). This is an American based website but accessible in Australia.

3 The time within which the plaintiff was entitled to bring defamation proceedings in respect of the email publications expired on 16 March 2008. It was accepted, however, that the plaintiff was unaware of the fact of the email publications until after preliminary discovery was ordered in April 2009 and access afforded to a joint experts report early the following year.

4 On or before 20 March 2007 the document “Close Encounters with Universal Knowledge” was republished on the CIFS Website (“the CIFS publication”). This is identified in the pleadings as “the second matter complained of”. In substance, the CIFS publication concerns the same material published in the email publications. The CIFS publication remained accessible via the internet until 31 March 2007 when it was removed by site administrators at the plaintiff’s request. It was common ground that the CIFS publication was not published on the CIFS website after that date.

5 It was also common ground that the time within which to bring defamation proceedings in respect of the CIFS publications expired on 31 March 2008. It was accepted however that the plaintiff did not know that it was the defendants (or either of them) who had directed or instructed that the document entitled “Close Encounters with Universal Knowledge” be published on the CIFS website until after preliminary discovery in late 2009.

6 On or before 24 March 2007 the document “Close Encounters with Universal Knowledge” (in the same form as the material published on the CIFS website) was republished on a website owned and managed by the Rick Ross Institute, a site that is accessible in Australia but, as with CIFS, with its infrastructure located in the United States (“the RR website publication”). This is identified in the pleadings as “the third matter complained of”. (On 18 September 2007 the defendants published the document “Close Encounters with Universal Knowledge” by email to Wally Anglese. Since it involved the same material as that published on the CIFS website, it is identified in the pleadings as part of “the third matter complained of”.) In so far as the third matter complained of is concerned, the time within which the plaintiff was entitled to bring defamation proceedings expired on 24 March 2008.

7 In addition, on 8 June 2007 and 6 December 2007 the first defendant, allegedly using the user name or pseudonym “max_burn”, published a number of blogs on the Rick Ross website. The blog of 6 June commenced with the words “Universal Knowledge Demonstrates…” while the later blog was entitled “The Truth about your Leader”. (Together they are referred to as the “max_burn” postings.)

8 While it was common ground that the publication on the RR website and the “max_burn” postings on that website came to the plaintiff’s notice on or close to the date they were published, and that they were available to be accessed and downloaded from the RR website up until June 2010 when they were removed at the defendants’ request, the parties were in dispute as to the significance of that fact on the question whether the action based upon their publication was statute barred. There was no evidence as to whether the plaintiff requested the removal of the two “max_burn” postings on the RR website in June and December 2007 although there is evidence, accepted by the defendants, that she requested one of her employees to ask the site administrators to remove the document “Close Encounters with Universal Knowledge” from the website. Accepting for the purposes of the application that the request was in fact made there was no evidence of the reason why the material was not removed.

9 The plaintiff submitted that since the defamatory material was still available on the RR website at the time proceedings were instituted in March 2010, the cause of action in respect of the publication of that material was not statute barred. The defendant submitted that the mere fact that the material was available on the RR website is not evidence of publication, whether that be for the purposes of s 14B of the Limitation Act 1969 or, more generally, for the purposes of the Defamation Act 2005.

10 The question whether the time within which to bring proceedings based upon the RR publications and the “max_burn” postings has expired or not is a discrete question. For reasons to which I will refer later in this judgment I am not persuaded that there has been a continuing publication of the material on the RR website and, accordingly, I am satisfied that an action based on each of the publications on the RR website is out of time, time having expired respectively on 24 March 2008, 6 June 2008 and 6 December 2008.

The imputations

11 The defamatory imputations allegedly conveyed by each of the matters complained of are in essence the same, namely, that the plaintiff purports to conduct a business providing personal development courses whereas, in truth, she is the leader of a cult who subjects her clients/followers to physical and mental abuse (such as sleep deprivation) under the guise of techniques to enhance their self awareness. These techniques are said to be designed by the plaintiff to engender feelings of fear in her clients/followers and to enhance her personal enrichment at their expense.

The statutory scheme

12 Section 14B of the Limitation Act prescribes a one year limitation period for actions in defamation which commences to run from the date of the publication of the matter complained of. The plaintiff accepts that if she fails to satisfy the statutory test provided for in s 56A of the Limitation Act, the actionable defamations said to be constituted by the publication of two of the three matters complained of in 2007 will be statute barred. (As I have noted above, the cause of action based upon the third matter complained of is said by the plaintiff to have been brought within time because the defamatory material originally published in 2007 was still accessible on the internet in June 2010.)

The statutory test of reasonableness under s 14B of the Limitation Act

13 The power to extend the limitation period is conferred by s 56A of the Limitation Act, which provides

(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. (emphasis added)
(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).

14 There has been limited judicial consideration by judges of this Court of the test provided for in s 56A(2) since the Limitation Act was amended, with effect, from January 2006. That said, I regard Simpson J’s construction and analysis of the section in Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [26] as both compelling and, with respect to her Honour, plainly correct. In Carey v ABC [2010] NSWSC 709 at [40] McCallum J expressed agreement with her Honour’s views.

15 Approached in this way, in resolving the issues raised by the plaintiff’s application for orders extending the limitation period, it is clear that s 56A does not confer a discretion to extend time were I satisfied that it was reasonable for the plaintiff not to have commenced proceedings within the prescribed period of 12 months, or were I satisfied that it was reasonable for her to have commenced proceedings after the expiration of 12 months. Neither does the statutory test of reasonableness in s 56A(2) import concepts of justice and fairness. Rather, the statutory test imposes on the plaintiff the burden of establishing that it was not reasonable, in the particular circumstances, for her to have commenced proceedings within 12 months of the date of publication of the defamatory material or, to put it another way, the burden of establishing that it would have been unreasonable for her to have commenced proceedings within 12 months of the date of publication of the defamatory material.

16 If the plaintiff satisfies me that it was not reasonable for her to have commenced proceedings within that time frame, it was submitted on her behalf that I am obliged to extend the limitation period to a date not exceeding three years from the date of publication of each of the matters complained of, such as to bring the pleadings within the extended limitation period. Neither Simpson nor McCallum JJ were invited to consider whether the extension of time available to be granted under s 56A must be for a period of three years, or whether the words “up to a period of 3 years” in ss (2) allow for an extension of time, in the exercise of discretion, for a shorter period where, for example, to extend time beyond such a period would be to give the plaintiff the benefit of a three year extension of time despite proven dilatory conduct after the period of 12 months had expired, or some more lengthy period by short of three years. In this case that question does arise largely because of the delay of just short of three years between the earliest date of publication of the defamatory material relied upon to found the action, to the date of filing of the statement of claim and, in addition, because of what the defendants submit is the lack of any (or any adequate) explanation for the failure on the plaintiff’s part to bring proceedings for a significant part of the period of two years after the statutory period had expired.

17 In Noonan v MacLennan [2010] QCA 50 the Queensland Court of Appeal considered that the identically worded s 32A(2) of the Limitation of Actions Act 1974 (Qld) should be interpreted and applied as Simpson J construed s 56A of the New South Wales Act. In that case Keane J (with whom Chesterman JA agreed) noted at [15] that it is only in relatively unusual circumstances (or special or compelling circumstances, see [50]-[51]) that a court would be satisfied that it was not reasonable for a plaintiff to seek to vindicate their rights in accordance with the time frame fixed by law.

18 In that case it was also emphasised that the test of reasonableness under the section is objective, in the sense that the circumstances to which the section refers are those that the Court is satisfied are objectively established and not those that the plaintiff believed (however reasonably) to exist. Consistent with the views of McCallum J in Carey at [48], I do not take that to mean that I am obliged to ignore altogether the plaintiff’s reasons for not commencing proceedings within the limitation period but rather that she will not discharge the statutory onus by asserting a subjective belief that it was not reasonable to bring the proceedings in the 12 month period following publication, or by demonstrating that her election to pursue non-litigious remedies was a reasonable or viable option to seeking legal redress.

19 I also note that in Pingle v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [34] Fraser JA regarded the selection of the period of any extension within the three years specified under s 32A(2) of the Queensland Act as discretionary, although that was not a matter necessary to be decided for the purposes of the appeal. This was a view shared by Chesterman JA in Noonan but again, obiter dicta.

The competing submissions in summary

20 The plaintiff submitted that she had discharged the evidentiary and legal burden imposed by s 56A, and that she was entitled to an order extending the time within which the action in defamation might be brought, (and by the statutory period of three years), such that, in respect of each of the matters complained of the statement of claim filed on 3 March 2010 was filed within time.

21 In seeking to persuade me that it was not reasonable for her to have commenced proceedings against the defendants within a year of the date of publication of the defamatory material, the plaintiff submitted that the circumstances during the period from 20 March 2007 to 3 March 2010 were not uniform but gave rise to a number of differing considerations within the three specified time frames of about twelve months within that three year period.

22 In the main, however, those circumstances were said to be as a result of the fact that because the defamatory material was published anonymously on the internet the plaintiff was without evidence essential to establish the identity of those defaming her within the 12 month limitation period such as to enable her to initiate proceedings against them and, further, that she was without evidence to initiate proceedings in any event until the orders for preliminary discovery were applied for, and that this was a time consuming exercise also because of the nature of the defamatory material and the forums where it was published.

23 The defendants’ primary submission was to accept the force in the plaintiff’s claim that the identity of the defendants as publishers was unknown as at the date of publication of each of the matters complained of, but to emphasise that the plaintiff took no steps at all within the 12 month limitation period to seek to ascertain the identity of those that she regarded as having defamed her (or to confirm the identity of those that she suspected of having defamed her - including the defendants), or to actively engage in the process of preliminary discovery to support an action until 12 months after the expiration of the limitation period. The defendants also sought to emphasise that despite the fact that the plaintiff was aware for a period of almost 12 months prior to the expiration of the limitation period extending up to and including July 2009, that a one year limitation period attached to an action in defamation, she elected to adopt an alternate strategy for dealing with the internet publications, namely by instituting a campaign of retaliatory blogging waged by a group of anonymous and willing allies posting information on the internet affirmative of her and her practices and disparaging of her detractors. The defendants also submitted that even were I to be satisfied that it was not reasonable for the plaintiff to have commenced proceedings until after she sought advice in February 2008, after her application for enrolment in a Queensland university was rejected, ostensibly on the basis of her reputation as a “cult leader”, the unexplained delay of 12 months before applying for preliminary discovery is so unreasonable that time should not be extended to accommodate it.

24 These competing submissions will need to be considered in the light of the pleadings, the evidence tendered on the motion and my findings in respect of a number of matters in the evidence that were the subject of contest.

25 The plaintiff and her partner, Mr Wellington, gave evidence on affidavit and were cross-examined. The defendants relied upon an affidavit of Mr Weimer, a former client of the plaintiff. He was cross-examined. The defendants also tendered file notes extracted from the documents produced under subpoena from the plaintiff’s former solicitors on the question of her knowledge of the operation of the limitation period under the Act.

The plaintiff’s allegation of continuing publication on the Rick Ross website

26 The only evidence adduced by the plaintiff of publication on the RR website after December 2007 (being the date of the last of the “max_burn” postings) was given by Mr Wellington. He said that at least from the time he took over the role of the plaintiff’s personal assistant in August 2008 he monitored the blogs posted on the RR website on a weekly basis. His affidavit annexed 45 downloaded blogs published on that website between March 2007 and June 2009, in what appears to be one continuous thread of postings by numerous bloggers over that period, including the two “max_burn” postings in June and December 2007. Mr Wellington gave evidence that whenever he detected that a new blog had been posted (whether unfavourable to the plaintiff or not) he would print off a fresh copy of the entire thread of the blogs preceding it which he then provided to the plaintiff and her solicitors.

27 The plaintiff relied on the posting of commentary by bloggers other than “max_burn” after December 2007 and up until June 2009 (and Mr Wellington’s downloading of that material) as evidence of the fact of continuing publication of the defamatory material in the year prior to the plaintiff’s filing of her statement of claim and, in that way, as evidence of the fact that the action for defamation in regards to that material had not expired.

[2002] HCA 56; 210 CLR 575 (at [44] and [48]) is authority for the proposition that evidence of publication is not established by the mere fact of material appearing on a website and being available to members of the public who might access that website. Publication for the purposes of the law of defamation occurs only where someone is shown to have downloaded and comprehended the defamatory material. At [44] Gleeson CJ, McHugh, Gummow and Hayne JJ stated:

“In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded onto the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done.”

29 For the defendants, Mr Richardson of counsel submitted that the blogging activity on the RR website in the period to which Mr Wellington’s evidence refers does not constitute publication of the kind required by the Dow Jones test, since it was, in substance, a publication commissioned by the plaintiff for the purpose of the current litigation and that no damage to her reputation could have occurred in those circumstances. The plaintiff called no evidence that the material complained of had been downloaded other than by Mr Wellington and no evidence from which an inference of downloading by others not in the plaintiff’s camp might be drawn.

30 Mr Richardson also submitted that an analysis of the blogging thread on the RR website does not support the inference (much less compel the inference) that publication of the defamatory material occurred in the 12 months prior to the filing of the statement of claim. While the final blog on the website was posted on 12 July 2009 (within the 12 months prescribed by s 14 B of the Act - a blog which I note was supportive of the plaintiff in any event), the immediately preceding posting was in April 2009 and the posting prior to that on 19 September 2008. While these postings appear on the last of five web pages none of the matters complained of appear on that page. Rather, the last of the matters complained of on the RR website (namely the “max_burn” posting on 6 December 2007) appears on the previous web page with the last posting on that page being 31 July 2008. Accordingly, the defendants submitted, even though the matters complained of on the RR website were published as part of a thread of blogs that included 45 individual blogs posted between March 2007 and June 2009, exhibited to Mr Wellington’s affidavit, the continued downloading of the entire thread of blogs by him up to an including 12 July 2009 does not support a finding of continuing publication by inference or otherwise such as to fix a date in June 2010 as the date from which time commences to run under s 14B of the Act, or an inference sufficient to support a conclusion of that kind .

31 I accept that analysis. I am satisfied that the evidence on the motion necessitates a finding that for the purposes of s 56A of the Limitation Act the dates of publication of the defamatory material on the RR website, and the two “max_burn” blog postings on that site are respectively, 24 March, 8 June and 6 December 2007 and that there was no continuing publication of that material after those dates.

The plaintiff’s response to the matters complained of

32 Proceeding on the basis that, save only for the email publications, the plaintiff was aware of the publication of each of the matters complained of at, or proximate to, the time of publication for the purpose of applying the test in s 56A, it is critical to inquire what her response was to the fact of publication. I am not persuaded that the plaintiff’s evidence of a “wait and see” approach to the impact of the publications on her reputation, such as to explain the delay in her seeking advice until her university application was rejected, as a material consideration given that, in accordance with the approach mandated by s 56A, the test of reasonableness in ss (2) is objective.

33 That said, the inquiry otherwise into her response to the publications needs to be viewed against the defendants’ contention that she deliberately chose to adopt an alternate strategy for dealing with the matters complained of, (and other material critical of herself and her company Universal Knowledge that was appearing on the internet) from March 2007 and that she did so well aware of the existence of the limitation period of 12 months under the Act. As to each of these issues the plaintiff gave evidence that she did not direct or instruct others to instigate a course of retaliatory blogging, and that she was unaware of the operation of s 14B of Limitation Act until 18 February 2009 when she received an email from her former solicitors which included the following:

“The Limitation period is 12 months and anything removed in February or March 2008 will be a publication which is now out of time or almost out of time…”.

34 The defendants submitted that her evidence as to both issues should be rejected as deliberately untrue. I accept that submission. Coupled with the fact that the plaintiff was, in my view, deliberately vague and evasive in her evidence in crucial respects and for those reasons not a witness upon whose evidence I am able to comfortably rely, I consider that other evidence tendered on the motion to be a more reliable source of the plaintiff’s actual state of knowledge despite her protestations to the contrary.

35 Andrew Weimers, a former instructor in one of the courses provided by the plaintiff, gave evidence of a meeting he attended in March 2007 where the plaintiff addressed a group of those involved in Universal Knowledge about the internet publications that had been brought to her notice. He said she used the phrase “a blogging we will go”, which he interpreted as an instruction to the group to commence retaliatory internet blogging. On 26 March 2007 Mr Weimers posted material favourable to the plaintiff on the RR website blogging thread under a pseudonym. He was not asked to comment as to his knowledge of the identity of any of the authors of the other postings in the thread, although I consider that having regard to the content of the blog the inference is plainly open that each of the “pro-plaintiff” bloggers were known to the plaintiff and were likely to have posted their views at her request or direction (or through members of her staff with her endorsement) however subtly she might have requested that this occur.

36 On 24 March 2007, following the initial RR website posting, was a blog posting by “realitycheckforall”, which the defendants submitted, on any reading, was in terms favourable to the plaintiff and indicative of the retaliatory approach which I am satisfied she resolved to adopt in response to the publication of matters complained of as published on the RR website. The posting by “realitycheckforall” commenced with the words:

“Check out a recent blog claiming to expose a cult that controls peoples minds and their lives … Make sure you check out the responses this blog has generated – what do we believe?”

37 The defendants submitted that this posting was in fact authored by Ms Debbie Lee, a supporter/friend of the plaintiff’s. (In her evidence, it was only after my persistent prompting that the plaintiff identified this woman as the mother of her godchildren.) That submission was supported by the fact that on 25 March 2007 Ms Lee sent an email (from her email address [email protected]) to the CIFS website moderator, reproducing substantially the same material under the heading “Universal Knowledge – Denny Cult – Warren and Annette Denny and Catherine Lock – Universal Knowledge – Integrity Check for Warren Denny”. The email then reproduced a copy of the “Close Encounters with Universal Knowledge” material and went on to provide a detailed response to that publication, including the following:

“We believe that the information provided on this blog has been created by a man by the name of Warren Denny – a Senior Partner and primary manager of Flower and Hart Solicitors in Brisbane. A reputable crusader or abuse of position?

As a person involved in the Department of Corrective Services which has such close ties with the Department of Justice and the Police Department – all Departments of high integrity, I am horrified at the low integrity that has been shown by this legal professional.
…
Unfortunately, we feel that your site has been discredited by your association with the Denny Cult as these are dangerous people”.

38 Despite there being no evidence that Debbie Lee was present in March 2007 when the plaintiff gave instructions to her followers that “a blogging we will go”, the defendants rely on the email sent by her as evidence of the fact that she authored the above publication using the pseudonym “realitycheckforall”. I am satisfied that is so.

39 This evidence, together with Mr Weimers’ evidence, more than comfortably persuades me that the plaintiff deliberately took a non-litigious attitude to the publication of the defamatory material which significantly undermines her ability to discharge the burden s 56A imposes on her in the circumstances of this case.

The plaintiff’s knowledge of the defamation limitation period

40 The plaintiff gave evidence that she first became aware of a 12 month limitation period for actions in defamation on 18 February 2009 when she received an email from her lawyers. This was a year after she retained them to advise her in respect of the subject defamation and 11 months after she instructed them to make application for an order for preliminary discovery. The defendants submitted that I would reject her evidence on this issue and that the 12 month limitation period was something well known to her at the time of publication, that being from as early as March 2007. This was said to be evidenced from a series of documents produced under subpoena by her former solicitors.

41 On 11 June 2010 the plaintiff’s solicitors forwarded a letter to the defendants’ solicitors enclosing a file note of 22 March 2007 produced by the plaintiff’s former solicitors under subpoena. The file note recorded as follows:

“HB explained the Statute of Limitations and limitation period 12 months and that we need to get a letter to Denny as soon as possible if Natasha wishes to proceed”.

42 The file note was made two days after the CIFS publication and two days prior to the RR website publication.

43 In her evidence the plaintiff claimed that she was not informed of the operation of the statute by her assistant, Ms McSherry, to whom the file note referred, and her instructions were not sought as to whether a letter of demand should be sent. She gave evidence that Ms McSherry was dealing with the earlier defamation litigation and did not discuss it with her despite the fact that it was the plaintiff whose reputation was said to be damaged by the publication of defamatory material and that she was the source of funds to finance the litigation. She again insisted that she knew nothing of the limitation period until December 2009.

44 On 2 August 2010 the plaintiff’s solicitors forwarded a letter to the defendants’ solicitors enclosing five further documents produced by the plaintiff’s former solicitors dated in the period 17 August 2006 – 28 February 2007. Each of those documents related to the earlier defamation claim against the defendants. Each of those documents refers in various ways to the 12 month limitation period. One is a letter addressed to the plaintiff personally and dated 17 August 2006 which concludes with the following:

“ Limitation Period

An action for defamation must be brought within one year of the date of publication”.

45 On 3 January 2007 a further letter was sent by email in the following terms:

“To: Ms N Lakaev From: Hilary Bone
Attention: Natasha Date: 3 January 2007
Re: Litigation Advice Defamation
…
We refer to our letter of the 7 ^th December 2006 and note that we have not heard anything from you in the interim. By way of clarification the $10,000.00 is not the cost of the Barrister’s advice but it gives you an indication of the costs you are likely to incur.
We advise you not to delay in this matter, as the Statute of Limitations requires that an application for Defamation be filed within twelve months from the date of publication.”

46 On 1 February 2007 the following internal memo was sent by the principal of the firm of solicitors to the solicitor who had carriage of the plaintiff’s matter:

“I see the barrister is about to incur costs and we still don’t have money in trust account. I see you made one call requesting payment but nothing has been forthcoming. Would you telephone Natasha tomorrow and let her know of limitation period and that can’t do anything more unless money in trust by close of business Monday morning and payment of our outstanding account immediately”.

47 (I note that the email was sent within two months of the defamatory publication on the CIFS and RR websites).

48 On 25 February 2007 a file note prepared after the conference with counsel recorded:

“WE NEED TO COMMENCE PROCEEDINGS SOON AS WE HAVE ONE YEAR TO GET GOING.
TT Andrea advised:” (Andrea is a reference to Ms McSherry).

49 The plaintiff filed an affidavit in the proceedings in response to the disclosure of this material where she attempted to assign the responsibility to her solicitors for failing to advise her of the limitation period (despite them having plainly informed the plaintiff on several prior occasions), in the process of her claiming to have never seen any of the documents produced, including the correspondence addressed to her personally. In her evidence she stated that it was common for her assistant to not pass on documents and messages intended for her.

50 The defendants submitted it was significant that this correspondence issued during the critical period of March 2007 when the first of the defamatory publications came to her notice. It was submitted by them that the plaintiff (having by that time engaged solicitors to consider a defamation action against them for an unrelated 2006 publication) was fully aware of the existence of the 12 month limitation period and that it was in this context that she decided to engage in the alternate course of retaliatory blogging rather than seek legal advice or institute proceedings which she well knew would or could prove costly.

51 The defendants further submitted that during the balance of 2007 and into early 2008 the plaintiff adhered to her intention not to commence legal proceedings in respect of any of the publications, and, since she was not unfamiliar with the law of defamation given the advice she had sought and received the previous year, deliberately did not enquire about her legal rights or seek to agitate them. As I have already said, the fact that she may have been motivated by what she perceived to be the link between her application to the Queensland university being rejected and the internet publications to first seek redress in February 2008 is irrelevant to the application she makes for an extension of time.

52 The defendants submitted that the obvious step available to the plaintiff during 2007 to discover or confirm the identity of those defaming her was to seek an order for preliminary discovery. She did not do so until February 2009, despite apparently instructing her lawyers to make the application in February 2008. When she finally did file a summons seeking such an order, the application was heard and determined within weeks of that date. On 8 April 2009 Adams J made comprehensive orders for preliminary discovery inclusive of an order imposing on the defendants the obligation of providing to a jointly retained forensic expert access to their personal computers and any passwords necessary to facilitate access to the hard drives of those computers.

53 On 1 October 2009 the expert, retained by the parties pursuant to his Honour’s orders, issued his report in which data and files on one of the defendants’ computers was identified in connection with the defamatory material the subject of the email publication and the publication of that material on both of the CIFS and RR websites. The defendants objected to disclosure of the entire report on the basis that it revealed irrelevant and confidential communications. Ultimately, on 11 February 2010, Rothman J granted access to material parts of the report.

54 In her evidence the plaintiff gave two reasons accounting for the 12 month delay before the application for preliminary discovery was made. First, she said that she was asked to provide a large amount of information and detailed chronologies which took quite some time and required review by counsel. The other reason she cited was that her personal assistant, Ms McSherry, left her employ in August 2008.

55 The defendants submitted that this was a wholly inadequate explanation for a 12 month delay between the provision of instructions and the making of the application. There is no evidence from the solicitors or counsel explaining or accounting for the delay on the basis asserted by the plaintiff. I am not persuaded from the evidence that is available that there is anything particularly arcane or complex in the process of seeking preliminary discovery which would explain a delay of what I consider to be inordinate length. The plaintiff’s evidence, being demonstrably unacceptable in other respects does not enable me to place any weight on her explanation for the delay.

Conclusion

56 In all the circumstances, I am not persuaded that the plaintiff has discharged the burden of proving it was not reasonable for her to have commenced proceedings within two years after seeking legal advice.

57 I am also of the view that she has, by her own conduct, failed to discharge the burden of establishing that it was not reasonable for her to have commenced proceedings within the statutory period stipulated by s 14B of the Act.

Orders

58 The orders I make are as follows:

1. The plaintiff’s notice of motion is dismissed.

2. The plaintiff is to pay the defendants’ costs.

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