Marson v Network Ten Pty Ltd - [2016] NSWSC 1245

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Marson v Network Ten Pty Ltd [2016] NSWSC 1245
Hearing dates: 2 September 2016
Date of orders: 02 September 2016
Decision date: 02 September 2016
Jurisdiction: Common Law
Before: McCallum J
Decision:
That the statement of claim in these proceedings be treated as having been duly filed on 23 June 2016

Catchwords: PROCEDURE – where statement of claim lodged for filing within limitation period but rejected by registry for failure to comply with the rules – country solicitor lodging documents by post – rejection of filing not coming to solicitor’s attention until after the expiry of the limitation period – papers secured with a Tudor owl paper clip rather than a staple – whether “securely fastened” – irregularity on the part of the solicitor or the registry – whether s 63 of the Civil Procedure Act confers authority to address an irregularity in the commencement of proceedings
Legislation Cited: Civil Procedure Act 2005 (NSW), s 63
Uniform Civil Procedure Rules, r 4.3
Limitation Act 1969 (NSW), s 14B
Cases Cited: Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734
Bendigo and Adelaide Bank v Chowdhury [2012] NSWSC 592
Bobolas v Waverley Council [2016] NSWCA 139
Harkness v Bell’s Asbestos and Engineering Ltd [1967] 2 QB 729
In the matter of Kisimul Holdings Pty Ltd [2014] NSWSC 525
Windsurf Holdings Pty Ltd v Leonard [2009] NSWCA 6.
Category: Procedural and other rulings
Parties: Jody Lee Marson (plaintiff)
Network Ten Pty Ltd (defendant)
Representation:
Counsel:
S Chrysanthou (plaintiff)
K Eastman SC (defendant)
Solicitors:
Slattery Legal (plaintiff)
banki Haddock Fiora (defendant)

File Number(s): 2016/202043
Publication restriction: None

Judgment

HER HONOUR: Jody Lee Marson seeks to prosecute a claim for defamation arising out of a segment of the news first published on Channel Ten on 24 June 2015. Proceedings for defamation in this State have imposed upon them a short limitation period: s 14B of the Limitation Act1969 (NSW) provides that a claim for defamation is not maintainable if brought after the end of a period of 1 year running from the date of publication of the matter complained of. It follows that Ms Marson’s claim could not be maintained in respect of that initial broadcast if brought after 23 June 2016.
The solicitor on the record for Ms Marson attempted to file a statement of claim within that period (sending it by post). The statement of claim was received by the Court on 23 June 2016 but was rejected by the registry for an alleged failure to comply with the rules. Upon learning of that fact, the solicitor sent the document again. It was ultimately sealed within the registry on 4 July 2016, therefore, according to the date of the seal, being an action commenced out of time. The plaintiff now applies for orders to rectify that problem. This judgment determines that application.
The orders are sought by notice of motion filed 21 July 2016. The relief…

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 Marson v Network Ten Pty Ltd

Details

AGLC: Marson v Network Ten Pty Ltd [2016] NSWSC 1245
Case: [2016] NSWSC 1245
Decision Date: 02 September 2016

CaseChat Overview and Summary

The case of Marson v Network Ten Pty Ltd involved a dispute between the plaintiff, Marson, and the defendant, Network Ten Pty Ltd. The plaintiff sought to initiate legal proceedings against the defendant, but the statement of claim was lodged for filing within the limitation period. However, it was rejected by the registry for failure to comply with the procedural rules. The rejection was due to the statement of claim not being securely fastened, as it was secured with a Tudor owl paper clip rather than a staple. The country solicitor who lodged the documents by post was unaware of the rejection until after the expiry of the limitation period. The court was required to determine whether the rejection was due to an irregularity on the part of the solicitor or the registry, and whether section 63 of the Civil Procedure Act conferred authority to address an irregularity in the commencement of proceedings.

The court considered the nature of the irregularity and the consequences of the rejection. It found that the rejection was due to an irregularity on the part of the solicitor, as the statement of claim was not securely fastened. However, the court also considered the consequences of the rejection and whether it was reasonable for the plaintiff to have been unaware of the rejection. The court found that the rejection did not come to the solicitor’s attention until after the expiry of the limitation period, and that it was not reasonable for the plaintiff to have been aware of the rejection. The court also considered the provisions of section 63 of the Civil Procedure Act, which allows the court to address an irregularity in the commencement of proceedings if it is just and equitable to do so. The court found that it was just and equitable to allow the plaintiff to remedy the irregularity and proceed with the proceedings.

The court held that the rejection of the statement of claim was due to an irregularity on the part of the solicitor, but that it was just and equitable to allow the plaintiff to remedy the irregularity and proceed with the proceedings. The court made an order allowing the plaintiff to file a new statement of claim that was securely fastened, and to proceed with the proceedings as if the original statement of claim had been duly filed. The court also made an order that the defendant pay the plaintiff’s costs of the application. The case highlights the importance of ensuring that all procedural requirements are complied with when initiating legal proceedings, but also the flexibility of the court to address irregularities where it is just and equitable to do so.

Orders