Meyer v Solomon

Case [2021] WASCA 168


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   MEYER -v- SOLOMON [2021] WASCA 168

CORAM:   BUSS P

MURPHY JA

MITCHELL JA

HEARD:   20 APRIL 2021

DELIVERED          :   17 SEPTEMBER 2021

FILE NO/S:   CACV 23 of 2020

BETWEEN:   BENJAMIN JACOB MEYER

Appellant

AND

MARCUS NATHAN SOLOMON

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   KENNETH MARTIN J

File Number            :   CIV 1938 of 2018


Catchwords:

Defamation - Limitation Act 2005 (WA) - Application under s 40(1) of the Limitation Act for leave to commence an action relating to the publication of defamatory matter even though one year had elapsed since the publication - Proper construction of s 40 of the Limitation Act - Whether, if the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within one year from publication, the applicable limitation period is three years - Whether, if the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action within one year from publication, the court has a discretion in respect of the length of any extension of time, subject to the three year limit prescribed by s 40(3) - Whether the primary judge erred in law in dismissing the appellant's extension application and in dismissing the appellant's action against the respondent by deciding, in the exercise of his discretion, that the appropriate extension under s 40(2) was for a period ending before the appellant filed his writ of summons

Legislation:

Limitation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Leave to appeal granted
Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant : Mr S Fitzpatrick
Respondent : Ms R Young & Mr J Winton

Solicitors:

Appellant : Mackay Chapman
Respondent : Williams & Hughes

Case(s) referred to in decision(s):

ABT17 v Minister for Immigration [2020] HCA 34; (2020) 94 ALJR 928

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27

Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247

Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485

Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304; (2017) 96 NSWLR 478

Burns v Minister for Health [2012] WASCA 267; (2012) 45 WAR 276

Casley v Australian Broadcasting Corporation [2013] VSCA 182; (2013) 39 VR 526

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503

Hall v Nominal Defendant [1966] HCA 36

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Meyer v Solomon [2021] WASCA 168
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[2021] WASCA 168
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CaseChat Overview and Summary

The Court of Appeal of the Supreme Court of Western Australia heard an appeal brought by Benjamin Jacob Meyer against the decision of Kenneth Martin J to dismiss his defamation action and his application for an extension of the limitation period under section 40 of the Limitation Act 2005 (WA). The appeal was dismissed. The appellant, Meyer, commenced proceedings against Marcus Nathan Solomon alleging defamation on 1 June 2018, more than three years after the alleged defamatory email was sent by Solomon on 3 June 2015. Meyer sought an extension of time to bring his action, but the primary judge dismissed both the action and the application for an extension. The Court of Appeal found that the primary judge's construction of section 40 of the Limitation Act was correct and that the discretion exercised by the primary judge in determining the length of the extension was not miscarried. However, the Court of Appeal found that in the exercise of its discretion, the primary judge had failed to give adequate weight to the tragic events that occurred in the appellant's family in December 2017, which led to the conclusion that the extension granted was unreasonable. The Court of Appeal re-exercised its discretion and would have granted an extension only until 8 December 2017. However, given the late commencement of proceedings by Meyer, there would be no utility in granting such an extension.

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