McMahon v Watkinson

[2014] VSC 123

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 03330

LUKE McMAHON	Plaintiff
v
AMANDA WATKINSON	Defendant

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JUDGE:	ZAMMIT AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	29 September 2014
DATE OF JUDGMENT:	28 November 2014
CASE MAY BE CITED AS:	McMahon v Watkinson
MEDIUM NEUTRAL CITATION:	[2014] VSC 123

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DEFAMATION – Limitation of action – Extension of time application – Whether ‘not reasonable’ in the circumstances for the plaintiff to have commenced proceedings within one year from date of publication – Plaintiff unaware of identity of the defendant – Limitation of Actions Act 1958 (Vic), s 5(1AAA), s 23B; Defamation Act 2005 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Mr A T Strahan	Minter Ellison

HER HONOUR:

1. The plaintiff, Luke McMahon, issued proceedings against the defendant, Amanda Watkinson, claiming damages for defamation in respect of:

(a)words the defendant allegedly said to Professor David Hayward, Dean of Global Studies RMIT University (RMIT), on 31 January 2011 to the following effect:

(i)     when you are around Mr McMahon ‘strange things happen’;

(ii)  the defendant had been subject to a media campaign and anonymous internet attacks regarding her dispute with Mr McMahon;

(iii)             during that period, Mr McMahon was spotted in her street, her car was vandalised and her cat died (the Hayward publication).[1]

[1]Plaintiff’s statement of claim dated 29 June 2013 [3].

(b)   words the defendant allegedly said to Ms Leanne Nicholson in September 2011 to the following effect:

(i)       Luke McMahon had killed the defendant’s cat;

(ii)      Luke McMahon had damaged the defendant’s car; and

(iii)     Luke McMahon was a psycho (the Nicholson publication).[2]

[2]Plaintiff’s statement of claim dated 29 June 2013 [5].

1. The plaintiff says that he became aware of the Hayward publication on 29 June 2012 and the Nicholson publication in September 2012. 

1. By summons dated 18 August 2014, the plaintiff seeks an order extending the limitation period for the cause of action pursuant to s 23B of the Limitation of Actions Act 1958 (Vic) (‘the Act’).

1. The plaintiff relies on three affidavits:

(iv)sworn 18 August 2014;

(v)   affirmed 2 September 2014; and

(vi)affirmed 29 September 2014.

1. The plaintiff also relies on written submissions dated 24 September 2014. 

1. The defendant opposes the application and relies on written submissions dated 24 September 2014.  

1. The defendant made an application to cross-examine the plaintiff which was granted. 

The evidence

1. The plaintiff’s evidence is somewhat confusing.  It is difficult from his affidavit material to accurately determine the chronology of events.  His evidence under cross‑examination went some way to clarifying the chronology.  The key evidentiary issue is when the plaintiff first became aware of the alleged defamatory publications. 

1. The plaintiff is a law student at the University of Melbourne.  He is not legally represented.  The plaintiff was employed in 2008 as a program manager with the Jesuit Social Services (‘JSS’).  The plaintiff became involved in a dispute with the JSS as a union delegate. The defendant was also involved…