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Lakaev v Denny

Lakaev v Denny

Case [2010] NSWSC 1480 17 December 2010

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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…

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 Lakaev v Denny

Details

AGLC: Lakaev v Denny [2010] NSWSC 1480
Case: [2010] NSWSC 1480
Decision Date: 17 December 2010

CaseChat Overview and Summary

The parties involved in this case were Lakaev, the plaintiff, and Denny, the defendant. The nature of the dispute was defamation, with Lakaev seeking to extend the one-year limitation period for commencing a defamation action as prescribed by section 14B of the Limitation Act 1969. The court in this case was the Supreme Court of Queensland.

The primary legal issue before the court was whether the power to grant an extension of time under section 56A of the Limitation Act 1969 was subject to a reasonableness test, as set out in section 56(2). The court was also required to determine the meaning of the phrase "up to a period of 3 years" in the context of granting an extension for the limitation period. Additionally, the court had to establish the date of publication in the context of online blogging, which was relevant to the commencement of the limitation period.

The court held that the power to grant an extension of time under section 56A of the Limitation Act 1969 was subject to the reasonableness test as set out in section 56(2). The court interpreted the phrase "up to a period of 3 years" as meaning that the court could grant an extension of up to three years, but not more than that. The court also found that the date of publication for the purposes of the limitation period in online blogging was the date when the blog post was first made available to the public, rather than when it was actually read by someone. The court granted the extension of time sought by the plaintiff, finding that it was reasonable to do so in the circumstances of the case.

The final orders of the court were that the limitation period for the defamation action was extended by one year, and that the defendant was required to file a defence within that extended period. The plaintiff was also awarded costs of the application.

Orders