Meyer v Solomon
[2019] WASC 458
•17 DECEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MEYER -v- SOLOMON [2019] WASC 458
CORAM: KENNETH MARTIN J
HEARD: 24 SEPTEMBER 2019
DELIVERED : 17 DECEMBER 2019
FILE NO/S: CIV 1938 of 2018
BETWEEN: BENJAMIN JACOB MEYER
Plaintiff
AND
MARCUS NATHAN SOLOMON
Defendant
Catchwords:
Defamation - Limitation Act 2005 (WA) - Application for leave to commence proceedings outside of 12 months statutory limitation period - Proceedings commenced one day prior to three years post allegedly defamatory publication - Consideration of court's power under s 40 Limitation Act - Whether 'not reasonable in the circumstances' for plaintiff to commence proceedings within 12 months of publication - Whether court must grant leave to the full extent of three year outer limit if basis shown to extend beyond 12 months - 'Not reasonable' threshold met - Determination that court's power to grant leave is at large within three year outer limit - Leave granted but not to full extent required to redress defectiveness of writ - Potential to grant leave after the event (nunc pro tunc) - Whether writ filed out of time is a nullity
Legislation:
Limitation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application dismissed
Category: A
Representation:
Counsel:
| Plaintiff | : | In person |
| Defendant | : | Mr J Gilmour QC & Mr J Winton |
Solicitors:
| Plaintiff | : | In person |
| Defendant | : | Williams & Hughes |
Case(s) referred to in decision(s):
Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304; (2017) 96 NSWLR 478
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127
Hewitt v Henderson [2006] WASCA 233
Ibrahim v Martin [2012] WASC 338
Martin Bruce Jones as liquidator of Forge Group Ltd (Receivers and Managers Appointed) (In Liquidation) v Sun Engineering (Qld) Pty Ltd [2017] WASC 195
Matheson v Commissioner of Main Roads [2001] WASCA 402; (2001) 25 WAR 269
National Mutual Fire Insurance Co Ltd v Commonwealth (1981) 1 NSWLR 400
Noonan v MacLennan [2010] QCA 50
Rayney v The State of Western Australia [No 3] [2010] WASC 83
Rolfe v Investec Bank (Australia) Ltd [2014] VSCA 38
Stone v ACE-IRM Insurance Broking Pty Ltd [2003] QCA 218; [2004] 1 Qd R 173
Trafalgar West Investments Pty Ltd as trustee for the Trafalgar West Investment Trust v Superior Lawns Australia Pty Ltd [No 7] [2015] WASC 280
Wookey v Quigley [No 2] [2010] WASC 209
TABLE OF CONTENTS
Introduction
Defamation actions and the Limitation Act 2005
Some overview observations
The plaintiff files his writ
Service of the writ
Application for leave
Evidentiary material before the court
Background
When the plaintiff learned of the 3 June 2015 email
The plaintiff's argument on his application
The defendant's opposition position against the application
The questions for determination
The first question
The second question
Some local and other case authorities
Further observations on s 40(2) of the Limitation Act
Assessments under s 40
Application of s 40 to this action
The plaintiff's evidence and chronology
Events prior to September 2016
Events subsequent to September 2016
Events beyond the 22 September 2016 email
Causation and 'shem tov' issues
Events from January 2017 onwards
The 9 June 2017 email
The plaintiff's knowledge at 9 June 2017
Events post July 2017
Events subsequent to 11 July 2017
Death of the plaintiff's wife and grandmother
Events after 7 March 2018
Observations on the plaintiff's (in)action to apply for leave to 9 March 2018
Events following 28 March 2018
The plaintiff's second affidavit - events up to 1 June 2018
Dr MacDonald's email of 6 June 2017
The defendant's nullity submission regarding the plaintiff's writ
The legal effect of a limitation period in Western Australia
The defendant's key case authorities
Nullities and granting leave nunc pro tunc
Conclusion
KENNETH MARTIN J:
Introduction
I am dealing with the plaintiff's application made by chamber summons filed 6 August 2019 seeking an extension of time pursuant to s 40 of the Limitation Act 2005 (WA) in order for him to commence proceedings against the defendant over his alleged defamation by an email sent by the defendant on or around 3 June 2015 (the 3 June 2015 email). In fact, proceedings are already commenced under the plaintiff's writ of 1 June 2018 - but without leave being obtained to commence before the writ was unilaterally filed by the plaintiff. The plaintiff acts in person. He describes himself in his second affidavit filed in support of the present application as an 'observant orthodox Jew'.
The plaintiff's application for an extension of time is opposed by the defendant. The defendant, who was only served with the writ in May 2019, entered a memorandum of conditional appearance on 7 June 2019 pursuant to Rules of the Supreme Court 1971 (WA) (RSC) O 12 r 6. It stated that the appearance was filed:
Without prejudice to the right of the Defendant to bring an application to set aside the purported writ of summons on the basis that it was commenced after the limitation period stipulated by the Limitation Act 2005.
The present application by the plaintiff's chamber summons seeking leave to commence this defamation action (out of time) regarding contended damage against his 'shem tov' (good name) was only filed at court on 6 August 2019. That event was over four years after the 3 June 2015 email, now complained of as defamatory.
Two fundamental questions arise for my determination. First, whether at this time there is the power for the court to grant the extension of time to commence the proceeding as is sought. Second, if there is power, whether an extension of time to commence the proceeding should be granted and, if so, for how long.
Under par 4 of the plaintiff's chamber summons an extension to commence the present action is sought until 1 June 2018. That is the date on which the plaintiff, without then having first obtained leave of the court to commence his action, nevertheless unilaterally filed his writ of summons. The writ is thus seen to be unilaterally filed at only one day before the running of three years beyond the publication of the 3 June 2015 email that is complained of as being sent by the defendant, containing allegedly defamatory 'representations'.
The actual terms of the indorsement to the plaintiff's writ of 1 June 2018 are important. They read in the following terms:
The plaintiff claims damages in connection with defamatory representations, whether written or oral (including, but not limited to emails and telephone calls), made directly or indirectly by the defendant to the plaintiff's employer, being Star-K Kosher Certification (also known as the Vaad Hakashrut of Baltimore) on or around 3 June 2015, as a result of which the plaintiff suffered direct and indirect losses including loss of income.
Pursuant to section 40(1) and (2) of the Limitation Act 2005, the plaintiff seeks leave for an extension of the time permitted to commence these proceedings.
Defamation actions and the Limitation Act 2005
For orientation purposes it is necessary at an early point in the reasons to have reference to the express terms of s 15 and s 40 of the Limitation Act.
Section 15 manifests within Pt 2 div 3 of the Act. Section 40 is found within Pt 3 div 3.
By s 11 of the Limitation Act, div 2 and div 3 of Pt 2 have effect subject to Pt 3.
It is also necessary to note s 12(1) within Pt 2 div 1 of the Limitation Act. It says, in effect, that a reference within Pt 2 to the commencement of an action is a reference to the issue of a writ or other originating application in relation to the action in the appropriate court.
Section 15 of the Limitation Act provides:
An action relating to the publication of defamatory matter cannot be commenced if one year has elapsed since the publication.
However, given the earlier mentioned subjugation of Pt 2 div 3 to Pt 3 of the Limitation Act, it is next necessary to evaluate and apply s 15 by reference to the terms of the following s 40.
As mentioned, s 40 is located in Pt 3 div 3 of the Limitation Act and provides (uniquely for Western Australia in contrast to other States and Territories, as I later explain) in the following terms:
(1)A plaintiff may apply to a court for leave to commence an action relating to the publication of defamatory matter even though one year has elapsed since the publication.
(2)Subject to subsection (3), on an application a court, 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 one year from the publication, must extend the time in which the action can be commenced.
(3)An action relating to the publication of defamatory matter cannot be commenced if three years have elapsed since the publication.
Evaluating the interrelationship as between the (s 15) one year and (s 40(3)) three year defamation action commencement time limits as seen specified under s 15 and s 40 respectively, it is necessary as well to notice s 3(1), one of the definition provision in the Limitation Act. By that definition provision, the term 'extension application':
Means an application under section 38, 39, 40, 41 or 42
Hence, it may now be seen that the Limitation Act, explicitly by s 3(1), classifies an application made by a prospective plaintiff to a court seeking an extension of time to commence (after one year) a defamation action under s 40, as one of five nominated instances of an 'extension application' under the Act.
That feature becomes relevant bearing in mind following terms of s 43 and s 44 of the Limitation Act. They are also to be found within Pt 3 div 3.
Relevantly, s 43, under the heading 'Jurisdiction and procedure', relates as regards the making of an extension application as follows:
(1)Subject to subsection (2), an extension application is to be made by summons in the jurisdiction in which -
(a)the existing action, if any, has been brought; or
(b)the proposed action would be brought if the application were successful,
as is relevant to the case.
(2)An extension application in respect of an arbitration for a difference or matter under an arbitration provision is to be made by summons to the Supreme Court.
(3)The plaintiff is to serve a copy of the summons on each person against whom the action that is the subject of the extension application is brought or proposed to be brought.
(4)Despite subsection (1), the Supreme Court may give leave to bring an action in any court which seems to it to be the appropriate court.
(5)An extension application can be brought or determined at any time before or after the issue, or close of, pleadings.
Then, s 44 of the Limitation Act, under the heading 'Further matters for court's consideration on extension applications', says:
When deciding, on an extension application, whether to extend the time for the commencement of an action, a court is to have regard to -
(a)whether the delay in commencing the proposed action, whatever the merit of the reasons for that delay, would unacceptably diminish the prospects of a fair trial of the action; and
(b)whether extending the time would significantly prejudice the defendant (other than by reason only of the commencement of the proposed action).
Although all provisions of the Limitation Act need to be, and will be, considered in their overall surrounding contexts with that Act in conducting any evaluation of the interrelationship between s 15 and s 40, I will add one more section from the Act to the present introduction to what I suggest present as the more potentially and contextually relevant legislative provisions to resolving issues on the current application.
I refer now to s 79 of the Limitation Act, lying within the miscellaneous Pt 6 provision part of the Act and which, under a heading 'Burden of proof', provides:
(1)Subject to subsection (2), a defendant in an action has the burden of proving that the action cannot be commenced because the applicable limitation period has expired.
...
(3)The plaintiff in an extension application has the burden of proving that a court should extend the relevant limitation period.
For the present application seeking leave to commence the plaintiff, in effect, accepts a s 79(3) burden, for the purposes of his application in seeking the extension of time that is seen to be brought by him pursuant to s 40(2) of the Limitation Act.
That becomes apparent from the second paragraph of his indorsement to the writ as already now seen and, further, from the terms of par 1 of his chamber summons seeking leave and advancing the present extension application.
Having outlined the legislative regime in which this application falls, I will now turn to the plaintiff's application and provide some general overview observations.
Some overview observations
The plaintiff files his writ
From the terms of the plaintiff's indorsement to his 1 June 2018 writ as filed, it has been seen that alleged 'defamatory representations' made by the defendant and about which the plaintiff complains are contended to have been made 'on or around 3 June 2015'.
I am making the assumption (in his favour) that the plaintiff, who acts in person, complains of a 'publication' of defamatory matter made by the defendant, notwithstanding par 1 of the indorsement - which refers to a claim for 'damages in connection with defamatory representations'. Notwithstanding that reference to 'representations' (rather than, say, to statements or publications), it is otherwise relatively clear that it is a publication of defamatory matter by the defendant which constitutes the plaintiff's essential cause of action grievance in the litigation.
Given a 3 June 2015 alleged defamatory publication(s) as contended, it is demonstrable from a timing perspective that the plaintiff's action was clearly not commenced within the s 15 Limitation Act one‑year temporal limitation window, after 3 June 2015, to meet that legislative requirement in order to commence an action without leave over an alleged defamatory publication. To fall within the s 15 one year limitation period window, the plaintiff would have needed to have commenced action against the defendant by filing a writ for defamation by not later than at 2 June 2016. Clearly, that did not happen.
Nor did the plaintiff first seek or obtain the leave of this court before commencing his defamation proceeding under cover of any order granting leave and extending time to 1 June 2018 - as is envisaged pursuant to s 40(2) of the Limitation Act, prior to filing the writ. As seen, the plaintiff filed his writ unilaterally without first seeking or obtaining that leave to commence - but did foreshadow a later application to seek that leave, on the face of the indorsement.
The plaintiff's reference to s 40(1) and s 40(2) of the Limitation Act as now seen in the second paragraph of the indorsement to the writ renders it explicit that the plaintiff was, at least then (ie, at 1 June 2018), aware of the terms of s 40 and, in particular, of s 40(3). So seen, s 40(3) effectively sets an absolute outer limit of three years for a commencement of proceedings over an alleged publication of defamatory matter - where a commencement of proceedings for defamation has not occurred within the one‑year window (as allowed under s 15).
Hence, by reference to the terms of s 40(3) of the Limitation Act, the plaintiff's writ can be seen here to have been filed only one day before the elapsing of the absolute three‑year outer limit for a commencement of defamation proceedings - even if leave were to be obtained from a court via s 40(2) which, as seen, is expressly made subject to s 40(3). So had the plaintiff delayed more than a day longer in filing his writ when he did, s 40(3) would have been engaged as the present application to extend time to commence would have been pointless.
Service of the writ
It will be remembered that the validity of a writ filed by a plaintiff for the purposes of service, if otherwise regularly, issued is for a period of 12 months (see RSC O 7 r 1(1)), subject to the power of the court to extend the validity of the writ from time to time (see RSC O 7 r 1(2)).
Here, it is also clear that the plaintiff after his writ was filed did not then act immediately to effect service of that writ upon the defendant. Service was not effected until just a few days before the 12‑month expiry of the validity of the writ for the purposes of service (under RSC O 7 r 1).
Service of the writ was, in fact, effected upon the defendant only on 29 May 2019. See the plaintiff's filed memorandum of conferral filed on 6 August 2019 par 1(i). No explanation for the time taken to effect service is given by the plaintiff.
The defendant's lawyers then entered the as seen conditional appearance on his behalf on 7 June 2019. By then, of course, the time passed was then beyond four years after the 3 June 2015 email.
Application for leave
So it is only at 6 August 2019 (some four years and two months past the 3 June 2015 defendant's representations as complained of) that the plaintiff has applied to obtain the leave of this court under s 40(2) of the Limitation Act for an extension of time to commence the present action.
As now also mentioned, the plaintiff's extension application is resisted by the defendant. First, the defendant points out, through his lawyers, that the 6 August 2019 chamber summons advancing the plaintiff's application for leave to commence the defamation action against him was only made (ie, filed at court) at a time that was three years and two months beyond the one‑year limitation period allowed for commencement of a defamation action by s 15 of the Limitation Act. Viewed another way, the plaintiff's application for leave to commence his defamation proceeding is advanced at a time over a year and two months beyond the expiry of what is the absolute three‑year outer limit extension boundary as is specified under s 40(3) of the Limitation Act.
The plaintiff's position, as was explained in person at the hearing of his application for leave to commence proceedings, is essentially that he had good reason for not commencing his defamation action against the defendant within the one-year limitation window allowed by s 15 of the Limitation Act. The time taken to effect service of the writ on the defendant, however, is not at all explained. A question arises within the application as to whether that is necessary or not.
Evidentiary material before the court
In due course, I will set out an extended chronology of events which the plaintiff says are relevant to his present leave application. The events which I relate are deposed within two affidavits of the plaintiff - the first affidavit of 2 August 2019 (the plaintiff's affidavit) and a second supplementary affidavit affirmed on 30 August 2019 (the plaintiff's second affidavit).
Shortly, I will provide a brief outline of key events leading up to how the plaintiff came to become aware of the 3 June 2015 email. However, to fully appreciate the circumstances of the plaintiff becoming so aware of that email, I must first briefly provide some more background information about the plaintiff. The following background is found in and taken from the plaintiff's affidavit.
Background
I was able to observe from his in person appearance before me that the plaintiff, who holds a PhD from the University of Cambridge, is obviously a very intelligent, well‑educated and articulate man. He was born in Johannesburg, South Africa, in November 1979. He immigrated as a child to Australia in October 1987 with his parents and siblings, settling in Perth, Western Australia (pars 5 - 6).
Between October 2008 and June 2016 (aside from a gap in 2011 -2012) the plaintiff was a resident of the United Kingdom, obtaining his various degrees, including his PhD (par 8).
From September 2005 to May 2015, the plaintiff worked part-time for Star-K Kosher Certification (Star-K) (par 10). Star-K is a Baltimore, USA-based company which provided kosher certification to companies around the world. The plaintiff explains that his work had involved visiting factories in various parts of the world so as to verify that the products being produced were compliant with Jewish kosher dietary laws (par 12).
From about July 2015, the plaintiff's work from Star‑K in terms of travelling overseas to certify essentially stopped. In mid‑July 2015, the plaintiff had been in contact with a Mr Amos Benjamin (who had initially recruited the plaintiff for this work in 2005) asking about the potential for certification work that summer. However, Mr Benjamin's response now indicated to the plaintiff that Star‑K did not require his services during August and September 'at this stage' (par 34). The plaintiff's last engagement with Star‑K was in April-May 2015. He has not since been assigned any further duties (par 40).
The plaintiff and his late wife, Dr Alzena MacDonald, spent much of the remainder of 2015 and 2016 making enquiries as to why the plaintiff had ceased to receive any such certification work from Star-K.
When the plaintiff learned of the 3 June 2015 email
Returning to the circumstances of the plaintiff becoming aware of the 3 June 2015 email, it seems uncontroversially established on the evidence put before me that it was not until some months after the s 15 Limitation Act one‑year window following such publication had closed (ie, after 2 June 2016) that the plaintiff came to learn of an email communication concerning himself made by the defendant.
Following a series of correspondence over 2015 and 2016 with various parties regarding his lack of employment opportunities with Star‑K, the plaintiff was able to gain some better insights upon that issue in September 2016. This followed his conversation with a Rabbi Mushell, a senior administrator of Star-K based in Baltimore. As the plaintiff relates at pars 60 - 61:
In early September 2016 when I telephoned Rabbi Mushell he confirmed that Star-K had been told that I did not have a 'shem tov' by a Perth‑based 'Rabbi who is a lawyer'.
Rabbi Mushell referred to a letter that this Rabbi had written to Star‑K. (my emphasis)
Subsequent to this contact, the plaintiff's late wife then engaged in correspondence with the Kashrut Authority of Western Australia (KAWA) to determine if Rabbi Mushell's information was correct. On 22 September 2016, she received an email directly from defendant (of which communication the plaintiff obviously became aware) stating to the effect that there was no 'letter', as had been suggested by Rabbi Mushell (par 68 and BMJ-10).
Nevertheless, on 9 June 2017 the plaintiff's late wife received a further email from the defendant (par 82 and BJM-14). By par 4 thereof the defendant now relayed:
… [B]y email dated 3 June 2015, I advised Amos Benjamin of the advice I received from the Sydney Beth Din and I copied that email to Rabbi Moshe Gutnick of the Sydney Beth Din ...
So then, at least by 9 June 2017, the plaintiff (who obviously had seen the 9 June 2017 communication that was sent by the defendant to his late wife) now knew that there had been a 3 June 2015 email concerning him. He had learned this was a communication by the defendant to Mr Amos Benjamin of Star‑K, his employer. The plaintiff, as a result, now had knowledge that he might hold some cause of action against the defendant, depending upon a proper assessment once the actual content of the 3 June 2015 email itself concerning the plaintiff's 'shem tov' (good name) was fully seen and evaluated.
The plaintiff's argument on his application
As I understand the position as is now contended by the plaintiff's present extension application it is that he has established for the purposes of s 40(2) of the Limitation Act that it was not reasonable for him to commence defamation proceedings against the defendant within the one‑year window (ie, say, by 2 June 2016) as allowed under s 15 of the Limitation Act. This was as he has established (and as it is not contended by the defendant on this application otherwise) that he did not even know of the defendant's possible involvement until at the earliest at September 2016, following his communication with Rabbi Mushell.
The plaintiff then argues that the way s 40(2) works for an extension application is that having met a 'not reasonable to commence within one year threshold' (as I fully accept for present purposes over the 12 months following 3 June 2015 or thereabouts), it now necessarily follows that the extra time to permit him to lawfully commence a defamation action 'must' be granted by the court. He argues further that the extension period to be granted by the court extends out to the outer boundary limit line of the s 40(3) three-year period ‑ measured from the time of the publication of the defamatory matter complained of. This would mean that his writ would be filed within time (by a day) vis-à-vis the three‑year absolute outer limit of s 40(3).
The plaintiff did not, of course, apply for leave to commence his action before filing his writ unilaterally, and so has not yet obtained leave to commence this action. But the plaintiff argues that this is no obstacle and can be overcome as well by a grant of leave from the court after the event. The plaintiff argues, in effect, that:
(a)his writ was filed within the s 40(3) of the Limitation Act three-year absolute outer limit (by a day) by reason of the filing of that writ to commence the present action, on 1 June 2018; and
(b)as the writ was filed within the s 40(3) three-year outer limit window time period, he is permitted thereafter to apply to the court (retrospectively, in effect under s 40(2) of the Limitation Act) for the leave that he still needs to receive in order to commence the present action. This is even though his application for leave was only made on 6 August 2019, argued at the hearing before me on 24 September 2019 as an opposed application, and still necessarily requires a determination (at the publication of reasons and orders deciding the present application) at a point in time that is well beyond the passing of the three‑year absolute window under s 40(3) (given that, for a 3 June 2015 defamatory publication or thereabouts, the s 40(3) outer limit window closed at 2 June 2018 or thereabouts).
The defendant's opposition position against the application
Resisting the plaintiff's application, the defendant argues that, in effect, it is now far too late for the court to grant leave to commence the present action - as such leave to commence cannot be sought or granted retrospectively (or as it is sometimes referred, using latin terminology, granted nunc pro tunc). This is especially so, says the defendant, once the outer three‑year time limit window under s 40(3) has closed, as it has here.
The defendant submits further in the alternative, that even were it not too late for an application for leave to commence proceedings to be sought and obtained, nevertheless, leave ought not in all the underlying circumstances be granted beyond an extension of six months post 3 June 2016 for various reasons. Hence it is said such a limited extension would be insufficient for the plaintiff and ultimately futile, as he did not file his writ until 1 June 2018.
The questions for determination
So, in short, and as I have mentioned, there are essentially the two questions which present for determination upon the plaintiff's application. First, is it now too late for the plaintiff to obtain a grant of leave under s 40(2) of the Limitation Act to commence the present action? Second, if it is not too late, should leave nonetheless be refused for the full extension period as is sought by the plaintiff, namely out until 1 June 2018?
The first question
For reasons which follow below, I am of the end view, first, that although irregularly commenced and defective, that it is not too late for leave to be given by the court to legitimise an irregular commencement of the plaintiff's action, if an extension of time to 1 June 2018 is otherwise assessed as appropriate in all the circumstances. Prior decisions by the Full Court of the Supreme Court of Western Australia and, subsequently, by the Court of Appeal of Western Australia and invoked by the defendant in reference to other statutory time limitations, in my view, are distinguishable and inapplicable. No prior decision of this court, as I assess matters, deals precisely with the issue of an application brought for an extension of time in regard to s 40(2) and (3) of the Limitation Act.
Whilst presently not too late theoretically for a grant of leave sought under s 40(2) of the Limitation Act, the present application raises matters of discretion in a holistic evaluation exercise, and taking an approach akin to that as explained by McColl JA in Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304; (2017) 96 NSWLR 478 (in reference there to what must be fully recognised as a somewhat differently worded s 56A of the Limitation Act 1069 (NSW) following an amendment by the Defamation Amendment Act 2002 (NSW)), I nevertheless would conclude that this court holds a residual discretion via s 40(2) as regards assessing the duration of an extension period allowed for time to commence an action (up to three years) and which duration discretion is essentially at large (and in which discretionary exercise the court might, if asked, take account of matters as identified by s 44(a) or (b) of the Limitation Act). In other words, I reject the argument that if the 'not reasonable' threshold is met (as here) that an extension must follow to the full period sought - out to the s 40(3) three-year outer limit.
I reach that end conclusion as a matter of discretion notwithstanding the unique terms of s 40 of the Western Australian Limitation Act and a decision by the local Parliament to not use (within s 40(2)) the words 'up to'. Of course, such words are otherwise seen deployed in the equivalent Limitation Acts around most other States and Territories under broadly, but not precisely, comparable limitation provisions towards commencing defamation actions. See, by example, s 56A(2) of the Limitation Act 1969 (NSW) as was discussed in Barrett v TCN Channel Nine.
The second question
Upon the second (discretionary) evaluation question for determination, I assess via s 40(2) of the Limitation Act that the discretion (including the s 44 considerations) as to the duration of the grant of an extension of time extends to a consideration of matters at large. Taking that view, I conclude, at the end, that leave to extend time for a commencement of the plaintiff's action by s 40(2) should not be granted beyond an extending period of six more months following the end of December 2017.
At June 2017, I assess that the plaintiff was plainly cognisant of an existence of the 3 June 2015 email which the defendant had acknowledged within an email communication to the plaintiff's late wife on 9 June 2017.
The plaintiff from June 2017 was on notice that his 'shem tov' issues with his employer, Star‑K, were in existence by reason of a 3 June 2015 email from the defendant to Mr Amos Benjamin.
Hypothetically, say, had the plaintiff pursued the prospect of a defamation claim against the defendant timeously from 9 June 2017, he might then have pursued an RSC O 26A third party discovery action against Mr Amos Benjamin to obtain a copy of the 3 June 2015 email. Or, he might have pursued an RSC O 26A pre‑action discovery application taken against the defendant, following the communication of 9 June 2017. Allowing, say, six months for that to have been done, that would take matters to December 2017 for something to be done by the plaintiff to have pursued his rights. None of that was done. In fact, the 3 June 2015 email has still not been seen by the plaintiff. Whether or not its content is arguably defamatory of the plaintiff's reputation, therefore, still remains a matter for an assessment.
Alternatively, again acting timeously under s 43 of the Limitation Act, with there being no existing action, the plaintiff could then have brought his extension to commence application by an originating summons issued against the defendant in this court and seeking then the leave to commence proceedings in accord with, say, an attached minute of proposed draft writ of summons issued by leave against the defendant. That would be an optimal way to proceed - by bringing the application for leave to commence and by obtaining leave of the court to commence proceedings by writ before the plaintiff's defamation writ is filed. When filed the writ would make an express reference to the earlier grant of leave order made by the court on the earlier action as commenced by an originating summons to an end of obtaining leave to commence proceedings. None of that, of course, happened here.
Even allowing six more months as from June 2017 for something to be done by the plaintiff, the plaintiff's inaction from beyond December 2017 by not seeking leave to commence under s 40(2) of the Limitation Act is not at all satisfactorily explained. Nor can it be excused. As such, the plaintiff's application must necessarily be dismissed. Albeit not necessary as a further factor for consideration the further delay in effecting service post writ is unexplained and would provide another negative factor if evaluated against a grant of leave for the period as sought.
Having briefly outlined my ultimately negative determination as regards the plaintiff's extension of time to commence application, I will now outline some relevant local case law before collecting a chronology of events and assessing all the defendant's arguments opposing the application.
Some local and other case authorities
In Wookey v Quigley [No 2] [2010] WASC 209 I had then occasion to consider a s 40(2) of the Limitation Act application made for an extension of time to bring proceedings in defamation ‑ albeit then within the context of validly subsisting litigation. The application essentially was to amend the writ, by adding even further allegedly defamatory publications, but where the 12‑month window of s 15 was only very marginally exceeded (by a matter of days) before the application was brought as regards those further publications the subject of the proposed amendments.
In the course of those reasons at [28] I made reference to an earlier decision by the Queensland Court of Appeal in Noonan v MacLennan [2010] QCA 50, concerning the interpretation of the relevant Queensland limitation provision, namely to s 32A(2) of the Limitation of Actions Act 1974 (Qld) (as amended). I also made reference to observations of Martin CJ in Rayney v The State of Western Australia [No 3] [2010] WASC 83 at [45]. The former Chief Justice had observed, in effect, upon an overall lack of uniformity as across the Australian States, as regarding limitation provisions in defamation actions ‑ despite uniform law endeavours.
In Rayney v The State of Western Australia [No 3] Martin CJ commenced an obiter discussion of the limitation situation at [40]. I need to set out in full all of the following rather lengthy passage, given its importance and present utility:
40.The first question which arises is whether the plaintiff has brought himself within the express provisions of s 40(2) of the Limitation Act which require a court to grant an extension of time if satisfied that it was not reasonable for the plaintiff to have commenced an action within one year from the publication. (my emphasis added)
41.That is a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances such as, for example, the plaintiff being unaware of the publication within the period of one year from the publication having occurred. The important points to note are that by virtue of s 79 of the Limitation Act the onus of proving that it was not reasonable to have commenced within the period of one year rests with the plaintiff, and as the Court of Appeal of Queensland observed in the case of Noonan v MacLennan [2010] QCA 50, the burden that must be discharged is to establish that it was not reasonable to have commenced within one year. It is not a burden which is discharged by showing that it was not unreasonable to have not commenced within one year.
42.The problem the plaintiff faces in this case is that the one year period expired on 20 September 2008. He had in fact commenced proceedings within one year of that date by these proceedings which were commenced on 16 September 2008. It would have been quite possible for him to have included in the writ a reference to the three earlier statements made on that occasion. Given that the plaintiff carries the burden of showing that it was not reasonable for him to have commenced proceedings by 20 September 2008, it seems to me that in the circumstances of this case that is an almost impossible burden to discharge and that he has failed to discharge it.
43.For those reasons I find that the plaintiff has not established that the court is obliged to give an extension of time by reason of the provisions of s 40(2) of the Limitation Act (on the assumption that an extension of time is necessary).
44.The remaining issue for determination is whether, notwithstanding the plaintiff's failure to bring himself within s 40(2) of the Limitation Act, he could nevertheless invoke a residual discretion which the court has to extend time. That issue gives rise to a question of statutory construction. A number of arguments have been raised. They include reference to the Model Defamation Provisions (prepared by the Parliamentary Counsel's Committee and approved by the Standing Committee of Attorneys‑General on 21 March 2005) which preceded the enactment of the Limitation Act and to which reference is made in the parliamentary debates which preceded the enactment of each of the Limitation Act and the Defamation Act. Reference has been made to the principle in Australian Securities Commission v Marlborough Gold Mines [1993] HCA 15; (1993) 177 CLR 485 and Farah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 to the effect that where there is uniform legislation, it should be given a uniform construction.
45.With respect to the able arguments that have been advanced, I have not found them to shed light on the construction to be adopted. With respect to the argument based upon the construction of uniform national legislation, this is not in fact uniform national legislation. The submissions that have been helpfully filed show that three different verbal formulations have been adopted in the various States and Territories that have defamation legislation along the lines of the defamation legislation in this state. There is the form which is to be found in s 40 of the Limitation Act of this state which is also to be found in s 44A of the Limitation Act (NT). There is the form that was set out in the Model Defamation Provisions themselves which can be found in s 20A of the Defamation Act 2005 (TAS), s 37 of the Limitation of Actions Act 1936 (SA) and s 21B of the Limitation Act 1985 (ACT). Then there is another form which is to be found in s 56A of the Limitation Act 1969 (NSW); s 23B of the Limitation of Actions Act 1958 (VIC); and s 32A of the Limitation of Actions Act 1974 (Qld). These sections expressly provide that 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 the equivalent of s 40(2) of the Limitation Act.
46.In all of the states other than Western Australia and the Northern Territory, the legislation has been drafted in terms which expressly provide that it is only in the circumstance specified in the equivalent of s 40(2) of the Limitation Act that the court can extend the limitation period. That gives rise to arguments either way about the inference to be drawn as to the intention of the Parliament of this state. The first possibility is that because this was intended to be uniform legislation, the Western Australian legislation should be construed in line with the legislation in other states and consistently with that legislation. The alternative argument which seems to me to be equally persuasive is to the effect that as that the legislature of Western Australia has not adopted the model provisions advanced and has not legislated in the terms found in New South Wales, Victoria and Queensland, it is to be inferred that the legislature of Western Australia expressly intended some different result to ensue. No assistance on the resolution of this issue is provided by the parliamentary debates which are ambiguous on this topic. I therefore do not draw any strength from the references to uniform legislation or from the principles relating to the construction of uniform legislation in those circumstances. It seems to me that what I am required to do is to go to the natural and ordinary meaning of the legislation to be drawn from the words used in the context of the Limitation Act as a whole.
47.Again there are competing considerations within theLimitation Act as to different approaches that might be taken. For example, the plaintiff asserts that s 44 of the Limitation Act, which by virtue of the definition of 'extension application' should be taken to apply to s 40, would only make sense if s 40 provides a general discretion beyond the scope of the imperative duty imposed by s 40(2). By contrast, the defendant asserts that, firstly, the inclusion of s 40 within the definition of 'extension application' by s 3 has utility because of the provisions of s 43 and s 79 and, secondly, s 44 on its proper construction should be construed as applying only to the circumstances in which there is a discretion. Put another way, the words 'whether to extend the time' within s 44, connote that the section only applies where there is a discretion, such as in s 38, s 39 and s 41, and therefore, the defendant contends, s 44 does not on its face apply to s 40.
48.These are not easy issues to determine but it seems to me that the answer to the question lies in a consideration of the structure of div 3 of pt 3 of the Limitation Act. If one goes, for example, to s 38, s 39, s 40, s 41 and s 42, each commences by empowering a plaintiff to apply to the court for leave to commence an action, even though the limitation period has expired. Each is then followed by a specification of the powers of the court, so that in s 38(2) the power of the court is conditioned upon the satisfaction of certain conditions, after which a discretion arises. The same is true of s 39(3) and s 41(2). In each of those sections and also in s 42, there is an express provision conferring power upon the court. The structure of each of these sections is to give a right to a plaintiff to apply to a court by the introductory words and then by words that follow to identify the powers of the court if an application is made.
49.In all of the sections other than s 40 those powers are specified in discretionary terms, sometimes subject to conditions being satisfied. However, in s 40 the only power that is conferred upon the court is expressed in terms of a duty which must be performed if the plaintiff has satisfied the burden to which I have referred. There is nothing in s 40 which confers a general power upon the court. There are no words in s 40 which are apt to confer such a general power. The plaintiff's contention would require one to read into s 40 words that are not there, contrary to well established principles of statutory construction and inconsistently with the structure which has been adopted in other provisions of the Limitation Act.
50.For these reasons, I conclude that there is no general discretionary power under s 40 to extend time but rather if the plaintiff satisfies the onerous conditions specified by s 40(2), there is a duty to extend time. I should, however, go on to express the view to which I would have come had I not reached that conclusion.
51.If I had concluded that as a matter of construction there was a general discretion to extend time, I would have unhesitatingly exercised that discretion. It is clear that the State has at all times been on notice of the plaintiff's contention that the statement made on 20 September 2007 was to be construed in the context of the statements earlier made and although there were different legal formulations of that approach, the State has been on notice of that fact since a time prior to the expiry of the one year period.
The former Chief Justice looks to have considered the end position in Rayney v The State of Western Australia [No 3] to be that there was no residual discretion held in the court, once an s 40(2) of the Limitation Act extension application had failed (see [50]). As regards the court's power to extend time under the section there was, arising from Parliament's use of the word 'must', a duty on the court to extend time under s 40(2), if the otherwise onerous conditions had been met (see [49]).
But as I respectfully assess his Honour's reasons in the passages set out above, they do not suggest there is a duty in the court to extend time out to the full extent of an outer three-year window from the time of publication, as specified by s 40(3) of the Limitation Act.
On my reading of the reasons, that issue is, with respect, still left open. A discretion in the court under s 40(2) as to the duration and extent of an extension that a court must otherwise grant, I assess, would not be inconsistent with anything in those reasons.
Upon the duration of the extension issue, albeit they are made in a different context of the distinctly worded s 56A(2) of the Limitation Act 1969 (NSW), McColl JA (with whose reasons Simpson and Payne JJA agreed) has subsequently said at [4] in Barrett v TCN Channel Nine:
… once an applicant for an extension of the defamation limitation period satisfies the court that it was not reasonable for him or her to have commenced such proceedings within one year from the date of publication, while the court must then extend the limitation period, s 56A(2) confers a general discretion as to the length of that extension. The discretion so conferred is confined only by the scope and purposes of the Limitation Act, in the latter respect being confined to the extent any extension cannot exceed three years from the date of the publication, and to be exercised in the context of the rationales for the existence of limitation periods. Although the primary judge applied what I refer to below as the 'not reasonable' test to the question of the period of the extension of the limitation period (and, with respect, erred in so doing), he also reached that conclusion by applying a general discretion. In so doing, his Honour cannot be said to have acted in a manner extraneous to the purpose of s 56A(2). (emphasis added)
See also her Honour's observations at [75] and [82].
Further observations on s 40(2) of the Limitation Act
Section 40 of the Limitation Act is uniquely worded vis-à-vis the legislation in other States and Territories. It is, as McColl JA observed in Barrett v TCN Channel Nine, a provision that is something of an 'outlier', as regards other limitation provisions around Australia when they were all brought in, effectively, as part of a package of reforms to limitation legislation around the uniform Defamation Acts enacted across the Australian States and Territories in 2005: see her Honour's observations in Barrett v TCN Channel Nine at [15], made there in reference to Martin CJ's observations in Rayney v The State of Western Australia [No 3] at [45]. Note also her Honour's footnote 10 at [15] within Barrett v TCN Channel Nine in reference to the provisions in the other Limitation Acts across the country. Under that footnote her Honour had observed:
The only real outlier in this respect is Western Australia which is the only jurisdiction which did not adopt the phrase 'to a period of up to three years running from the date of the publication' in respect of the extension of the limitation period: see s 40 of the Limitation Act 2005 (WA). (emphasis added)
Approaching the interpretation of s 40 of the Western Australian Limitation Act within Pt 3 div 3 thereof, and assessing it within the landscape that is its surrounding text, context and purpose, I am of the view that the approach to be adopted even though the text of s 40 is different to the text of s 56A of the Limitation Act 1969 (NSW) (and, specifically, lacks the same terminology of s 56A(2) by referring to a 'period of up to three years running from the date of the publication'), is still that a relevant court holds a general discretion to extend a period of time upon an extension application made under s 40(2).
In other words, the first hurdle for an applicant is to surmount the 'not reasonable' threshold under s 40(2) of the Limitation Act. If an applicant can do so, then a court 'must extend time to commence the proceeding'. But the second hurdle still to be confronted leading to a second required evaluation, and which is not constrained, is for how long?
Assessments under s 40
The (first) 'not reasonable' threshold is assessed by reference to circumstances of the relevant plaintiff assessed within the (s 15) period of one year from the time of the defamatory publication that is complained of.
Assuming a positive answer favouring an applicant would‑be plaintiff, as regards the first hurdle (ie, the 'not reasonable' threshold) there remains more work for that applicant plaintiff, as regards establishing the permissible duration of an extension of time that the plaintiff seeks, assessed within the outer constraints of a potential further two-year extension of time beyond the s 15 one‑year limitation period. For a court, in making an assessment as regards the period of an extension, then, like McColl JA in Barrett v TCN Channel Nine at [4], I would also assess that this question is to be evaluated differently to an assessment of the earlier s 40(2) 'not reasonable' threshold. And there is one further qualification unique to s 40 of the Western Australian Limitation Act bearing also as a factor to be weighed in an exercise of the court's general discretion in it deciding on the length of a permitted extension (up to a maximum of three years from the date of the publication).
That extra factor arises from the terms of s 44 of the Limitation Act which, as already seen, may be applicable to a court when determining an 'extension application' under s 40(2).
Section 44, of course, is made generically applicable to all 'extension applications', as defined. However, as regards s 40(2), concerning extension applications related to defamatory publications, the work of s 44 potentially arises once the applicant has surmounted the 'not reasonable' threshold under s 40(2).
The work of s 44 looks to be directed to considerations arising after that one‑year period, essentially, as non‑exclusive considerations for a court, as regards evidence that might be adduced by a defendant concerning the prospects of the defendant getting a fair trial being assessed as unacceptably diminished, or if the extension of time sought would be assessed as significantly prejudicial to the defendant (other than by reason only of the commencement of the proposed action).
I am not deflected from my view as to the existence of a general discretion as to the duration of an extension of time in the court, by the chapeau of s 44 which includes the phrase 'whether to extend the time'. Assessed in an overall context, that phrase is broad enough to be interpreted (assessed on the basis that s 44 is a provision made generically applicable as well to s 39, s 41 and s 42 applications as well) to apply to considerations uniquely associated with a required s 40(2) evaluation upon the duration of an extension of the time that 'must' to some extent be allowed, once the 'not reasonable' threshold is met. I assess that interpretation to align to the work of the word 'must' as used in s 40(2), and provides some necessary functionality for s 44 as regards it holding a potential application to all extension applications, including to an extension application under s 40(2) by a plaintiff over a defamatory publication.
I would emphasise, however, that any s 44(a) and (b) considerations bearing on the position of a defendant for an extension application, are not exclusive. They are simply highlighted considerations under s 44 towards what overall, as explained by McColl JA in Barrett v TCN Channel Nine, is a general discretion as to the duration of a period of extension must be granted.
Application of s 40 to this action
Meeting the first 'not reasonable' threshold of s 40(2) of the Limitation Act is, as a number of other curial officers have observed by prior decisions, a difficult hurdle for a plaintiff to overcome, unless there are some unusual circumstances. One such circumstance was identified by Martin CJ in Rayney v The State of Western Australia [No 3] at [41], for where the would-be plaintiff is unaware of the publication within the period of one year from that publication as having occurred. And factually, that is the very position here, up to September 2016, as I have concluded. The defendant does not suggest otherwise on the present application.
Consequently, by reference to the terms of s 40(2), this court 'must' grant an extension of time to this plaintiff to commence his defamation proceedings - out to a time beyond the one-year limitation window, as imposed under s 15 of the Limitation Act. One of the plaintiff's primary contentions, of course, is that once he meets the s 40(2) 'not reasonable' threshold applicable as regarding his not commencing an action within the s 15 one-year limitation period his work is all done. He must then receive an automatic extension via s 40(2) extending to the maximum extent allowed, ie, to 2 June 2018. I find no case authority supports that proposition. Essentially for the same reasons expressed by McColl JA made in rejecting a similar argument by reference to the terms of the local New South Wales limitation provision in Barrett v TCN Channel Nine, I reject that argument within the present context of the local Western Australian Limitation Act. With respect, the approach as contended for by the plaintiff stands uneasily against a general policy of tighter constraint against defamation actions, underlying all the limitation reform provisions of 2005. If accepted, it would, as McColl JA observed, permit a plaintiff to sit on his or her hands to do nothing as regards progressing an action, even though they became fully cognisant of a defamatory publication and of the alleged defamer within a matter of days after an expiry of the 12‑month limitation period (see her Honour's discussion in Barrett v TCN Channel Nine at [86] - [88]).
The duration of the extension (which, by reference to s 40(3) cannot exceed a three-year outer parameter from the time of the publication) must necessarily raise a question for the court's wider discretion on the application which is at large, save only for s 44 of the Limitation Act as directed considerations, if relevantly raised in the exercise.
For the present application, however, this defendant has not sought to adduce any evidence as regards a specific prejudice suffered by reason of the present application seeking an extension of time to commence this action. Only generic delay submissions are made concerning a general legislative policy underlying s 15 of the Limitation Act and to the objective policy at the time underlying a truncation in limitation periods concerning defamatory publications when introduced as part of the overall reforms accompanying the attempted uniform defamation laws across the nation in 2005. However, nothing more specifically pertinent to the circumstances of this as regards prejudice to the defendant was the subject of any evidence in resisting the present application for an extension of time. Hence, s 44 is not in play in the present application. To that end, observations of McColl JA in Barrett v TCN Channel Nine at [65] should be recalled.
The plaintiff's evidence and chronology
Next, I recount the following aspects of the plaintiff's evidence (bearing in mind he is self represented, which has resulted in much of the submitted material being assembled by his two affidavits in a somewhat argumentative and unhelpful manner). I observe that the intent of my present exercise is to gather from these affidavits and assemble all the relevant facts pertinent to the court assessing the duration of his extension of time application as a matter of general discretion. There is, of course, the earlier question raised by the defendant as to whether the whole exercise is pointless and too late - which I discuss later.
As already stated, an extension cannot be given beyond the period of three years from the date of the publication by operation of s 40(3). Relevantly here, that puts the outer limits of a maximum possible two‑year extension period, at 2 June 2018. As already seen, the plaintiff's writ was filed on 1 June 2018. Consequently, he is, essentially, seeking now an extension period embracing all but one day of the maximum two-year period of potential extension available under s 40(2). Then, after the 1 June 2018, the plaintiff's memorandum of conferral relates that he did not effect service of the defendant with that writ until May 2019 (almost eleven (11) months later) and only a few days before the unserved writ would become stale if not removed.
Consequently, as I assess the plaintiff's two affidavits, I am focussing particular attention on the plaintiff's conduct across and after early September 2016, particularly following the occasion on which Rabbi Mushell had informed him that Star-K had been told 'that I [the plaintiff] did not have a "shem tov" by a Perth‑based "Rabbi who is a lawyer"'.
Having already briefly outlined the plaintiff's background, I will return to provide the fuller chronology leading to the events giving rise to this matter and to the application. Unless otherwise noted, all evidence is taken from the plaintiff's affidavit.
Events prior to September 2016
The plaintiff relates that he worked about 85 days a year in his work as a certifier for Star-K and appears to have received favourable feedback about his performance from Mr Amos Benjamin and the director of the South Asia office of Star-K, Mr Joel Weinberger (par 16). It was Mr Amos Benjamin who looks to have engaged the plaintiff for certification work in China in late April 2015 (par 21).
At pars 26 - 27, the plaintiff relates his experience in terms of giving evidence in the Family Court of Western Australia in August 2013, relating to custodial matters concerning his sister. In that context, he relates knowing that in the course of those proceedings the defendant gave evidence on behalf of his sister's ex-husband.
The relevance of this evidence initially was somewhat mystifying. However, later parts of the plaintiff's affidavit, including some of the attachments, suggest the plaintiff providing evidence in the Family Court of Western Australia might, on one view, have been the cause or been a contributor towards some members of his faith suggesting that that bore adversely against his good name as a member of the local Jewish community of Perth. [Obviously, I am not expressing a view one way or the other about that issue.]
Between pars 28 - 32, the plaintiff then relates that in late November 2014 he commenced a relationship with a woman who he subsequently married. This was the late Dr Alzena MacDonald. The plaintiff relates that although Dr MacDonald was not Jewish when they first became involved, she subsequently decided to apply for a conversion to that faith and under the auspices of the Sydney Beth Din (par 31). To that end, he and Dr MacDonald travelled to Sydney in April 2015 to present their case to the senior rabbi on the Sydney Beth Din, Rabbi Yoram Ulman.
As related, from about July 2015, the plaintiff's work with Star‑K in terms of travelling overseas to certify food as kosher essentially stopped. The plaintiff had been in contact with Mr Amos Benjamin in mid‑July 2015 asking about the potential for more certification work that summer in China. But Mr Benjamin's response indicated that Star‑K did not require his services during August and September 2015 'at this stage' (par 34). The plaintiff's last engagement with Star‑K was in April-May 2015. He has not since been assigned any further duties (par 40).
The plaintiff relates that on or around 3 October 2015 (par 41), when he was visiting Perth, he introduced Dr MacDonald to Mr Amos Benjamin and to Mr Benjamin's wife. There was then a discussion about some food certification work in China for Star-K as a potentiality in December 2015, or 2016. But, as related by the plaintiff, Mr Benjamin was non‑committal (par 42).
It was in October 2015, in a telephone call with Rabbi Mushell, that the plaintiff asked, in effect, if there were any concerns regarding him or his performance 'as I had not received any work from Star‑K for several months' (par 43). The plaintiff relates that in that telephone conversation Rabbi Mushell advised the plaintiff 'en passant [in passing], potential "concerns" as to the impression people may have of [the plaintiff] in Perth, but refused to elucidate' (par 44).
Next, the plaintiff refers at pars 46 and 47 to his receipt of an email from Rabbi Mushell on 12 October 2015, in which the rabbi stated that Star‑K had been 'made aware of some details [of my marital life] from another kashrut organisation'. That 12 October 2015 email (see BJM‑5) had concluded:
Having worked with you these many years I am confident that things will conclude in a proper manner so as to allow us to make use of your services.
At pars 49 and 50, the plaintiff relates that Dr MacDonald was converted to Judaism on 12 April 2016 and that on 20 April 2016 he emailed Rabbi Mushell to inform him of that fact. In due course, the secretary of the Sydney Beth Din is believed by the plaintiff to have emailed a copy of Dr MacDonald's conversion certificate to Star‑K (par 51). On 16 May 2016 the plaintiff sent another email to Star‑K (see BJM-9) to Rabbi Mushell asking whether there were any Star‑K further work opportunities (par 52). His email, as relates the plaintiff, went unacknowledged (par 53).
Next, relevantly, the plaintiff relates that he returned to Perth on 28 June 2016 and was married on 3 July 2016 (par 55).
The plaintiff then relates that he had further email contact with Rabbi Mushell throughout July 2016 and that eventually, in late August 2016, he had the telephone call with Rabbi Mushell. I previously outlined this phone call in an earlier part of these reasons. However, it is very important, so that I set out the verbatim contents of pars 58 - 64 of the plaintiff's affidavit dealing with this event, at which he says this:
58.In late August 2016, I telephoned Rabbi Mushell. He told me that the actual reason for my non-employment was that I 'do not have a shem tov ('good name') in Perth.'
59.This was the first occasion where I was officially told by a senior person of Star-K that there was an issue with my 'good name' in Perth.
60.In early September 2016 when I telephoned Rabbi Mushell he confirmed that Star-K had been told that I did not have a 'shem tov' by a Perth-based 'Rabbi who is a lawyer'.
61.Rabbi Mushell referred to a letter that this Rabbi had written to Star-K.
62.Rabbi Mushell went on to state that I would be re-engaged if I 'moved to Melbourne or Sydney, or some other community' or if I obtained a letter from [the rabbi] favourably attesting to my reputation.
63.I asked Rabbi Mushell for a copy of the letter sent by the Rabbi/lawyer; he responded that he would have to look for it. I confirm to this Honourable Court that this letter has never been provided to me even though I have made several requests.
64.To the best of my knowledge and information, the only Rabbi in Perth who practices [sic] Law in Perth is [the defendant].
Events subsequent to September 2016
Next, the plaintiff relates (par 65):
In order to further investigate this 'shem tov' 'bad name' allegation, and to verify that Rabbi Mushell's information was correct, my wife Alzena contacted the rabbinic board of the Kashrut Authority of Western Australia ('KAWA') which consisted of Rabbi David Freilich ('Rabbi Freilich'), [the defendant] and Rabbi Shalom White ('Rabbi White').
There was a communication from Rabbi White sent 22 December 2016 to the plaintiff's late wife that is appended as attachment BJM-10 to the plaintiff's affidavit but which it is not necessary to detail. However, I would observe in passing at this point that I assess that it was not unreasonable for the plaintiff (with the assistance of his wife) to take some further steps to find out the content of, or to verify the existence of a communication about which he had been told by Rabbi Mushell had been sent by the defendant to Star-K. However, given the full running at that time of the 12-month period of limitation specified under s 15 of the Limitation Act, there was obviously no time to waste. The bringing of an application by s 40(2) for leave to commence proceedings was now imperative.
At par 67, the plaintiff refers to his contact with Rabbi Freilich both in December 2017 and June 2019 and relates that, according to the plaintiff, Rabbi Freilich had said to him:
... that he was mystified by Alzena's email and instructed his secretary at the material time to check the records of KAWA to see if there was any prior correspondence regarding this matter of which there was none.
At par 68, the plaintiff then mentions an important email communication of 22 September 2016 sent from the defendant to Dr MacDonald. The communication is said to have been sent by the defendant both on his own behalf and also on behalf of Rabbi Freilich.
Again, although I have already referred to his email, given its particular importance, I will set out the full content of the email sent by the defendant on 22 September 2016 at 10.50 am. Looking at the terms of the communication it will be seen that the email commences with a reference to 'your email below'. I take that to be a reference to an earlier email that had been sent from the plaintiff's late wife to the defendant and/or to Rabbi Freilich. However, no copy of that earlier email communication as sent from the plaintiff's late wife had been provided to the court - so its content remains unknown for the purposes of the present application. The provision of that context may have carried some further insights.
The defendant's email of 22 September to Dr MacDonald read in the following terms:
Dear Ariella Ruth,
I refer to your email below. Rabbi Freilich and I have discussed the matters you have raised and I advise as follows.
1.We are not aware of any advice from KAWA to Star K regarding your courtship.
2.We are not aware of a letter from a Perth Rabbi to Star K advising that anyone is 'not in good standing'.
3.If Star-K wishes to discuss with KAWA or any individual member of KAWA the suitability of a person to undertake Kashrut supervision, the appropriate course is for Star-K to make direct contact with KAWA or with the individual member for that purpose.
At par 69 of his affidavit, the plaintiff comments (no objection is taken):
I interpreted this email to mean that neither [the defendant] nor Rabbi Freilich had spoken or written to Star‑K regarding Alzena or me.
By my assessment, that information is not an unreasonable response to the defendant's 22 September 2016 email communication. I would not see it as reasonable to expect the plaintiff or his late wife to make a distinction as between a communication by way of email, as opposed to a communication by way of 'letter'. On the other hand, I do not think that item 2 of the defendant's communication reasonably suggests that there was no communications at all as between himself and Star‑K, say, on more general topics. The statement under par 2 of the email explicitly disavows awareness of a 'letter' advising that 'anyone is "not in good standing"'. A communication made other than on the topic of the person's good standing would not be within the reasonable parameters of that negative statement under item 2.
Events beyond the 22 September 2016 email
At pars 70 - 72, the plaintiff relates some further contact with Star-K personnel by telephone in November 2016, leading to the advice that it was unlikely that work would be available for him in the immediate future and that his position had been taken by another person. He relates that on 17 November 2016, in another telephone call, Rabbi Mushell confirmed that a replacement for the plaintiff had been hired by Star‑K.
Next, there followed another significant telephone communication, this time between the plaintiff and Dr Pollak, who was the President of Star‑K, on 13 December 2016. The plaintiff relates that during this telephone call, Dr Pollak (pars 72 - 74):
... informed me that Star-K had never intended to utilise my services in the aftermath of reports from Perth that I had testified in the Family Court.
Dr Pollak stated that whilst he personally was 'very sympathetic to [my] cause', it was very difficult for Star-K to continue employing somebody who 'doesn't have a shem tov [good name]' in his community. He made it clear that the issue with my name had arisen due to 'the community [being] upset that [I] testified in court.'
Dr Pollak said he would only be willing to disclose the source(s) of these reports, which had resulted in Star-K not providing me with future work, if instructed to do so by a Beth Din.
At par 75, relevant to the state of his knowledge at the time, the plaintiff says (and I take this to be a reference to mid-December 2016):
I believe, but am not certain, that it was at or around this time that I first consulted s. 40 of the Limitation Act 2005, whose provisions I accorded their plain and natural meaning.
I note that the plaintiff does not refer at all to s 15 of the Limitation Act. Nor does he elaborate upon what he says he then believed that so referenced plain and natural meaning of s 40 to be. The terms of s 40, particularly s 40(2), are not without their grammatical, let alone legal, interpretive challenges. To that end, see my earlier observations in Wookey v Quigley [No 2] at [27].
Nor, of course, does the plaintiff say whether or not he ever sought or received any legal advice about his position as a potentially defamed person at or around this time or, indeed, at any time within the period addressed in his affidavit materials. Of course, it would not and is not expected that the plaintiff's privilege over such legal advice, if any, as was received, would be disclosed. However, the fact of the plaintiff seeking or obtaining such advice could, in my view, bear relevantly as a factor upon present considerations. And it would be open for the plaintiff to make it clear that he was not waiving the benefit of privilege he held over that legal advice, by simply pointing to the time(s) at which he had either sought or obtained it for the purposes of the present application.
Causation and 'shem tov' issues
I pause at this point to observe that the information provided over the telephone on 13 December 2016 by the President of Star‑K to the plaintiff as to why the plaintiff had not been engaged to perform further certification work, is said to be based upon reports received from Perth about the plaintiff having 'testified in the Family Court'. That, of course, is a reference to a back story series of matters addressed by the plaintiff as regards August 2013 divorce proceedings as between his sister and her former husband, around ensuing issues relating to criminal charges against his sister's former husband then further, to what is related as protracted and expensive litigation in the Family Court, following the sexual assault trial which ultimately resulted in the acquittal of the former husband on one charge and with another charge being dropped, and two remaining charges resulting in a hung jury.
The plaintiff's participation by giving testimony in the Family Court and adverse (for him) 'shem tov' consequences relating to his participating in a secular court over the resolution of a legal dispute said to be something forbidden by Halacha (Jewish law) is a series of potentially causative events in its own right as regards Star‑K (see par 18). That driver as articulated to the plaintiff by the President of Star-K as the expressed reason then for Star‑K as a certification body not wishing to utilise his future services as a certifier of kosher food by reason of the plaintiff testifying in the Family Court, raises one unique causation source for Star‑K not further engaging the plaintiff. But it is as a reason, as I would assess matters, wholly a distinct cause, as against that of concerns expressed over details of the plaintiff's marital life said to have been obtained by Star‑K from 'another kashrute organisation' - as Rabbi Mushell had emailed the plaintiff on 12 October 2015 (par 46). That would be a different cause for Star‑K to not further engage the plaintiff's certification services.
Thus, there are two possible causation (of loss of employment) issues emerging at this point in the plaintiff's affidavit and both potentially bearing upon the plaintiff's 'shem tov'/good name in Perth. As at 13 December 2016, the President of Star‑K, Dr Pollak, as related, had personally told the plaintiff, according to his own evidence, that it was his testimony given in a secular Australian court which had made it difficult for that company to continue employing him. Dr Pollak relayed to the plaintiff that the problem was due to the Perth community being upset that he had 'testified in court' (taking that to be a reference to the Family Court of Western Australia). If that it correct, it had nothing to do with the defendant relaying anything about the plaintiff and his relationship with his future wife, Dr MacDonald.
So, in other words, there are now two different potential adverse 'shem tov' issues for the plaintiff: (a) most authoritatively, out of the mouth of the President of Star‑K as conveyed directly to the plaintiff, his giving of testimony in the (secular) Family Court; or (b) details of the plaintiff's personal life prior to him marrying Dr MacDonald on 3 July 2016, after she had been converted to Judaism on 12 April 2016 being passed to Star‑K by the defendant. That latter causative reason as expressed looks to have been the subject of Rabbi Mushell's communication to the plaintiff of 12 October 2015.
Events from January 2017 onwards
The next part of the plaintiff's affidavit essentially runs from the period of January 2017 onwards. It describes efforts to pursue the identity of Star-K's sources, as the plaintiff says at par 76:
... with Star-K's co-operation and by utilisation of a Beth Din.
(a Beth Din being a Jewish court of law composed of three rabbinic judges, responsible for matters of religious law and for the settlement of civil disputes).
At par 20 of his affidavit the plaintiff explained that part of the terms of his engagement with Star‑K as an employee had committed him to a compulsory arbitration scheme requiring employees to seek relief from a Beth Din rather than from a secular court. Significant in this information is that the plaintiff says at par 20:
As a result of this agreement, when a cause of action arose between me and Star-K I was obliged to seek relief from a Beth Din rather than from the Honourable Court which is [sic] partly accounts for the delay in bringing this cause of action.
The plaintiff's affidavit then relates a commencement of his action against Star-K via the London Beth Din, then some setbacks in that respect, by a challenge, in effect, to the jurisdiction of the London Beth Din by Star‑K suggesting the proper venue for any case was the Beth Din of Baltimore. But there duly emerged another problem with a significant proportion of the Baltimore Beth Din's funding being from Star-K (see pars 76 - 81).
Later paragraphs (pars 88 - 91) concern the plaintiff's 17 November 2017 communications with a Rabbi Heinemann, what Rabbi Heinemann told the plaintiff concerning who was in charge of Star‑K (namely, that it was not Rabbi Heinemann, but Dr Pollak) and a suggestion made by Rabbi Heinemann to the plaintiff to take Star‑K to the Beth Din of Greater Washington, if the plaintiff was not willing to utilise the services of the Baltimore Beth Din. All that information is interesting. But I do not assess the communications with various Beth Dins over the plaintiff's dispute with Star‑K to materially bear upon or provide any convincing reason for him not proceeding with urgent secular action to advance any defamation action he thought he might hold against the defendant in the courts of Western Australia, once he had come to learn that a possible defamatory communication by the defendant existed.
To return to that issue, my assessment is that nothing much was done by the plaintiff vis-à-vis his timeously investigating a basis for him to pursue a defamation action against the defendant - especially after his telephone conversation with the President of Star-K, on 13 December 2016. That was when Dr Pollak had told the plaintiff personally that the reason he did not have a good name ('shem tov') within the local Perth community and so, the reason Star-K had ceased using his services was that the local parish community was upset about his testifying in a secular court (see pars 72 and 73 of the plaintiff's affidavit).
The 9 June 2017 email
The plaintiff's affidavit returns to the issue of the defendant's possible involvement in his loss of employment with Star‑K at par 82, where he refers to another email the defendant sent to his late wife. That email is attached as BJM-14. I draw an inference that all communications provided to the plaintiff's late wife by the defendant were swiftly made known to him and very proximate to the time of their receipt by her. I infer that because the plaintiff's late wife was, in effect, by her communications, as I assess things, acting on the plaintiff's behalf and would have been likely then to have reported all relevant responses by the defendant to him, timeously.
Attachment BJM-14 of 9 June 2017 is an important communication made by the defendant, which again I need to set out in full.
But before doing that, I note that the first line of the communication sees the defendant referring to the plaintiff's late wife's email of 6 June 2017. Again, a copy of that email was not provided in the plaintiff's affidavit. However, it is found attached to the plaintiff's second affidavit, to which I will turn to later.
Dr MacDonald's 6 June 2017 communication was a response to the defendant's earlier 22 September 2016 email response sent to her, to which I have earlier referred and it obviously led the defendant to provide a further response in the terms he did of 9 June 2017.
The defendant responded to Dr MacDonald in the following terms on 9 June 2017 at 3.54 pm, now writing:
Dear Ariella Ruth,
I refer to your email of 6 June 2017.
I have discussed your email with Rabbi Freilich and respond as follows:
1.it is clear that your husband is in dispute with Star K;
2.the dispute relates to his engagement with Star K;
3.KAWA does not intend to become involved or embroiled in that dispute and save for the matters set out below, will not engage in detailed exchanges in relation to the matters you have raised;
4.in June 2015 I was approached (not in my capacity as a member of KAWA) by a person who was concerned that Mr Binyamin (Barry) Meyer
[which I assume to be a reference to the plaintiff]
was undertaking supervision work for Star K while romantically involved with a non-Jewish woman with two children and that Binyamin had approached the Sydney Beth Din to apply for conversion of the woman. In response to the matters that had been brought to my attention, I contacted Amos Benjamin whom I knew to be an employee of Star K and verified that Binyamin was undertaking supervision work for Star K. I then verified the information regarding the non-Jewish woman directly with Rabbi Moshe Gutnick and Rabbi Yoram Ulman of the Sydney Beth Din. Having verified that information, by email dated 3 June 2015 I advised Amos Benjamin of the advice I received from the Sydney Beth Din and I copied that email to Rabbi Moshe Gutnik of the Sydney Beth Din. The email was not sent in my capacity as a member of KAWA and simply conveyed the advice I had received regarding the woman with whom Binyamin was said to be romantically involved and her prospective conversion. The email made no reference to other matters raised in your email;
5.neither Rabbi Freilich nor I are aware of any other correspondence between any member of KAWA (in any capacity) and Star K regarding your husband;
6.KAWA itself has had no correspondence with Star K regarding your husband, nor so far as Rabbi Freilich and I are aware, has any member of KAWA ever had any communication with either Dr Pollak or Rabbi Mushell regarding your husband;
7.KAWA does not intend to engage in further exchanges in relation to this matter.
The plaintiff's knowledge at 9 June 2017
The information provided by the defendant's email communication of 9 June 2017 to Dr MacDonald significantly augmented the plaintiff's level of knowledge about a potential defamatory email communication made earlier by the defendant (which was not a letter), of 3 June 2015.
As a result, at this time, the plaintiff now knew of a 3 June 2015 email that had been sent by the defendant to:
(a)Mr Amos Benjamin (a Perth based representative of Star‑K);
(b)Rabbi Moshe Gutnik of the Sydney Beth Din (to whom a copy had been forwarded) ; and
(c)(by way of inference) Rabbi Freilich, also mentioned in par 5, who may have seen or been provided with a copy of the 3 June 2015 email of the defendant to Mr Benjamin.
Hence, there would appear then to be, apart from the defendant himself, three other potential sources from which a copy of the defendant's 3 June 2015 email might be obtained, for the purposes of scrutiny from a perspective of assessing whether or not it might ground an arguable defamation action for the plaintiff. The defendant as author of the email would likely have retained, or have had access to a copy of his email.
Ensuing paragraphs of the plaintiff's affidavit relate that communications were sent either by his late wife or by himself to all those four such potential sources, seeking out a copy of the 3 June 2015 email. But in the result, all such requests were either refused, rebuffed, deflected or ignored (pars 83 - 90). Even now, the plaintiff (and thus the court) has not seen a copy of the defendant's 3 June 2015 email.
It is necessary to pause at this point to observe chronologically that
(a)9 June 2017 was some two years and six days after 3 June 2015 - relevantly to the now substantially exceeded one-year limitation period for defamatory publications as is imposed under s 15 of the Limitation Act; and
(b)all this information was provided to the plaintiff in circumstances where his own affidavit has said at par 75 that it was at a time earlier than 9 June 2017 (I infer it was around mid-December 2016) that he had personally become familiar with s 40 of the Limitation Act.
Events post July 2017
Returning to the plaintiff's affidavit, he then relates a telephone conversation of 5 July 2017 with Mr Amos Benjamin. At par 83 the event is put this way:
On 5 July 2017, I telephoned Mr Benjamin. He initially said that he forwarded on an email from [the defendant] but did not recall if he spoke to him. He subsequently clarified that he told his interlocutor, whom from context I took to mean [the defendant], that he was unwilling to deal in hearsay and so asked for the complaint to be put in writing which he then forwarded on to Baltimore. He was not willing to send me a copy of the email.
A number of observations need to be made about par 83. First, on one interpretation it could be read as suggesting that there was not simply an email but something further that was 'put in writing'. The reference to forwarding that communication on to Baltimore would look to be a reference to forwarding the communication to the head office of Star‑K in Baltimore, USA. I note that the plaintiff refers to 'the complaint' being put in writing. Reference to a complaint is completely inconsistent, of course, with par 4 of the defendant's email of 9 June 2017, which refers to him only conveying advice that the defendant had 'received regarding the woman with whom Binyamin [the plaintiff] was said to be romantically involved and her prospective conversion'. The label of 'complaint' as is applied by the plaintiff is, therefore, problematic.
The defendant's email reply to the plaintiff of 9 March 2018 does not detract in any way from that assessment. Highly sympathetic as I am personally to the plaintiff's loss of his wife and his grandmother over the period at the end of 2017, his delay in doing anything more than he did following the communications of July 2017 and his, in effect, posing of a series of unanswered interrogatories to the defendant on the issue is, I conclude, not sufficiently explained. The plaintiff on paper presents as tenacious and persistent by his correspondence to the defendant. But a lack of a response to his interrogatories of July 2017 did not provide a sufficient basis for him to delay further until March 2018, at which time he simply wrote to the defendant and copied others in on his correspondence. The plaintiff must have known that a three-year outer limit window, he having earlier taken personal regard to s 40 of the Limitation Act would provide a permanent cut-off date for the duration of any extension, even if he was completely successful upon an extension to commence application.
Events following 28 March 2018
At par 95 the plaintiff, by reference to BJM-19, relates that he emailed the defendant on 28 March 2018, again asking for a copy of the 3 June 2015 email. There was no reply to that communication (par 97 and BJM-19). A lack of a response led the plaintiff, he says, to email the defendant again on 16 April 2018, once again requesting access to the email of 3 June 2015 (par 97 and BJM-20). The defendant provided two responses to that communication (BJM-20 and BJM‑21). The first email, which was sent on 16 April 2018, which is BJM-20, by the defendant was simply an interim holding response but added:
... you should make no presumptions and in particular no consent should be presumed.
A second email of 20 April 2018 of the defendant, which is BJM-21, was in these terms:
Dear Benjamin
As I have explained, it was brought to my attention that you are undertaking Kashrut supervision while dating a non-Jewish woman still undergoing conversion. I verified that information then conveyed it to the appropriate person. Whilst I sympathise with your predicament, I see no basis for complaint about that course. In the circumstances, I am not prepared to consent to your requests.
As at 20 April 2018, upon receipt of that negative response, there was still some potential time for the plaintiff to act urgently and to apply to this court for an extension of time pursuant to s 43 of the Limitation Act by an originating summons seeking leave to commence proceedings under s 40(2) and extending time to that end, prior to the full running of three years post 3 June 2015 - at midnight on 2 June 2018. That did not happen.
On the preferred view which I have earlier expressed, my impression is that by then the plaintiff would have been unsuccessful. He had waited too long and ought to have acted earlier. But if I am wrong about that, then there was still 10 days of April and all of May 2018 for the plaintiff to have acted. No sufficient explanation for not acting is provided. The plaintiff merely says at par 99:
I lodged a writ for defamation against [the defendant] on 1 June 2018.
That writ, as already seen, was unilaterally filed without first obtaining prior leave under s 40(2) of the Limitation Act and extending time to 1 June 2018. However, the indorsement foreshadowed that course.
There is no need for me to specifically refer to pars 100 - 104 of the plaintiff's affidavit.
The plaintiff's second affidavit - events up to 1 June 2018
As mentioned, the plaintiff also relies on a second affidavit filed 30 August 2019. Regrettably, some of the information in that affidavit and its materials overlap with the chronology of events as now discussed. For completeness, however, I turn back to events in that second affidavit and augmenting the chronology of events now assembled up to 1 June 2018.
Much of the plaintiff's second affidavit contains material by way of background concerning the plaintiff describing himself as an observant Orthodox Jew since childhood and some surrounding implications.
At par 29 of his second affidavit, the plaintiff provides some explanation about KAWA which he repeats is overseen by Rabbis Freilich, White and the defendant. The observation is put in the asserted context of KAWA being a marginal organisation in contrast to Star‑K, which is described as one of the 'big four American Kashrut organisations'.
At par 35 of his second affidavit the plaintiff says:
On the basis of [the defendant's] email in reply of 22 September 2016 I concluded that Rabbi Mushell had been misinformed as to the true source of the report.
That paragraph confirms that the response of the defendant had been seen by the plaintiff and further, at that time the plaintiff's late wife had expressed to him her view that the wording of the defendant's email was 'unnecessarily and inelegantly byzantine' (see par 36 of the defendant's second affidavit).
As regards a need for the plaintiff to take timely steps to seek leave to commence proceedings begun beyond the one year s 15 limitation period under the Limitation Act, par 36 of his second affidavit is important. The plaintiff is, in effect, accepting that his wife was advising him at or around 22 September 2016 of her view that the defendant was being evasive, and further 'she expressed the view to me at the time, and on subsequent occasions, that [the defendant] was the source of the report to Star‑K'. The plaintiff's second affidavit rather suggests that the plaintiff ought to have been acting at or around that time in terms of seeking to proceed against the defendant, although he continues to suggest that he was not in effect receptive to that view as expressed by his wife as at September 2016.
Dr MacDonald's email of 6 June 2017
Arising out of the second affidavit is a late provision by the plaintiff of the missing email of 6 June 2017 which his late wife had then written to the Rabbinical Board of KAWA, which had precipitated the defendant's subsequent 9 June 2017 response as earlier discussed (see BJM‑25 at pages 13 - 15 of the plaintiff's second affidavit). The email is lengthy. Much of it traverses ground already covered. But I note the following paragraphs under which the late Dr MacDonald then wrote to the defendant:
In September 2016, after further inquiry, Rabbi Mushell informed Binyamin that the true reason for his suspension was his lack of a shem tov in Perth. Rabbi Mushell gave no reason for Binyamin's lack of a shem tov; we suppected, not unnaturally, it was due to him courting me while I was undertaking the conversion process. Rabbi Mushell stated that the negative report had come from one of the rabbis at KAWA but did not name that rabbi. He said that a letter confirming Binyamin's shem tov (that is, a letter of reference) would enable his re‑employment. Rabbi Mushell insisted that such a letter had to be signed by [the defendant].
On 19 September 2016, I wrote to KAWA with respect to the above matters. On 22 September, I received a reply from [the defendant] who formally advised me that neither he nor Rabbi Freilich were 'aware of any advice from KAWA to Star‑K' regarding my and Binyamin's courtship, nor were they 'aware of a letter from a Perth Rabbi to Star‑K advising that anyone is "not in good standing"'. I forwarded [the defendant's] letter to Rabbi Mushell.
Dr MacDonald's email then referred to her husband's telephone conversation with Dr Pollak, the President of Star‑K who she says 'expanded on the reason for Binyamin's suspension'. As related by Dr MacDonald's email, Dr Pollak had stated to the plaintiff:
You're living in a community that, for whatever reason, is not happy with what you did … [employing someone] in the community [where] this person doesn't have a shem tov, it makes it very difficult for us'. He continued:
'In the community, in Perth, … people are upset at you … They're upset because you … and we verified this … and we spoke to some people. They are, the community is, upset that you testified in court.'
Dr MacDonald then relates the testimony given by her husband in the trial at the Family Court of WA concerning his niece and nephew which she says 'touched upon the trial of their father in the District Court of WA on multiple counts of sexual penetration of a minor of lineal descent and indecent dealings with a minor of lineal descent'.
Dr MacDonald's email then expresses her shock about Dr Pollak's explanation about why her husband was suspended back in May 2015. She says:
I am particularly hurt that Star‑K chose to reveal their true reason for Binyamin's suspension after 14 months of claiming that my being in the process of geirus was the issue. I was made to feel that it was my non‑Jewish status that was responsible for Binyamin's and my severe financial distress.
The balance of the communication looks to proceed overall on the basis that the true reason for her husband's suspension with his former employer, Star‑K, was the fact that he testified in a secular court, rather than anything to do with her former premarital non‑Jewish status and their relationship.
If that is the case then, the subject matter of the 3 June 2015 email and the concerns over Dr MacDonald's conversion to Judaism and the unfolding of that process, that subject matter would have very little to do with the causation of her husband's termination as a Kosher food certifier for Star‑K. Of course, the plaintiff does not need to accept that explanation without having seen the 3 June 2015 email. Nevertheless, a suspicion as relayed by the plaintiff's late wife at this time provides insights towards why obtaining a copy of the 3 June 2015 email might not then be perceived to be an issue of priority to the plaintiff - if the true reason for his employment with Star‑K not being continued was actually due to his testimony in a secular court. I should also observe that nothing before me in any of the material suggests that the defendant's email communication of 3 June 2015 addressed the issue of the plaintiff's testimony before a secular court.
Dr MacDonald's long communication concludes:
Please G-d, KAWA will take seriously the matters I have raised, and promptly resolve to determine the identity of the individual(s) responsible for victimising my husband and, by extension, me.
That communication therefore should be read as the precursor to the defendant's 9 June 2017 email to Dr MacDonald.
Finally, par 41 of the plaintiff's second affidavit speaks of a conversation he had with Dr Pollak on 28 January 2019. The relevance of this communication is questionable, given that the plaintiff then had commenced unilaterally his action by a writ against the defendant generally indorsed on 1 June 2018. In addition, he did not effect service of the writ until over some 11 months thereafter and does not seek to explain in any of his materials the reason for waiting so long before affecting service.
In any event, at par 41 the plaintiff relates that in this conversation Dr Pollak had only reiterated then that:
(i)Star‑K had been informed that the Perth Jewish community was upset that I [the plaintiff] had testified in court;
(ii)Star‑K was informed that continuing to use me 'would reflect ill on the acceptability of Star‑K' and that the community would view this very negatively; …
Thus the information relayed only reinforces from a true causation of loss perspective that it was the issue of the plaintiff's testimony before a secular court, rather than information provided to Star‑K concerning the romantic relationship with his late wife prior to her conversion that, at least as was expressed by the President of the plaintiff's former employer organisation, was the actual causative reason for his failure to secure further employment. That reason might itself provide the plaintiff with some basis for grievance against his former employer, but from a causative perspective the information being related as to the cause of non-employment looks, on the face of it, to be a different issue than that potentially canvassed against the defendant by reasons of the 3 June 2015 email.
The content of par 4 of the 9 June 2017 email of the defendant to the plaintiff's late wife is accepted as accurate: see [123] - [127].
The defendant's nullity submission regarding the plaintiff's writ
The next section of these reasons deals with the alternative contention as advanced by the defendant that as commenced, the plaintiff's action is a complete nullity and so that it is not possible for this court to grant leave after the event in order to validate the present action. As already seen, I have preferred to approach the matter and assessed it overall on the basis that I do not accept that submission, so that although irregularly commenced without leave, that the plaintiff's writ of 1 June 2018, I assess, is not a nullity. Of course, if I am wrong about that and the action is, indeed, assessed as a nullity, then the present application fails in any event.
It is evident that the defendant addresses this matter in the context of the one year limitation period for defamation actions under s 15 of the Limitation Act and the unique terms of s 40 as regards a capacity for a defamation plaintiff to apply to a court for leave to commence an action, even though that one year period has elapsed since the publication complained about.
It is submitted that where a plaintiff might meet the requirements of s 40(2) of the Limitation Act that such plaintiff, as here, may not unilaterally file their writ without leave one day before the expiry of the s 40(3) lapse of outer limit of three years since the allegedly defamatory publication. To that end, a number of Australian case authorities earlier decided in other contexts under the prior Limitation Act 1935 (WA) or various other interstate statutory limitations were advanced to support the defendant's plenary submission of nullity towards the plaintiff's writ.
However, there is no local authority, as far as I can ascertain, that is directly on the present s 40 limitation point in relation to the now raised alleged nullity issue under the current Limitation Act.
I note that in Ibrahim v Wadworth [2009] WASC 317, a plaintiff had filed a writ beyond the one year s 15 of the Limitation Act limitation period. Le Miere J refused an application to extend time under s 40(2) by reference to the failure to meet the 'not reasonable' threshold when assessing that plaintiff's conduct across the one year period post publication. But no nullity of action submission as is presently contended for was put in that case. His Honour evaluated the extension application pursuant to s 40(2) on its (de)merits, as things turned out.
Presently, the defendant relies on three key authorities in support of a nullity contention. None are precisely on point. All may be distinguished.
Before looking at each case authority in turn, I must render a rather self‑evident plenary observation that it is important to fully appreciate the legal effect of an expiration of a limitation period under the local Limitation Act.
The legal effect of a limitation period in Western Australia
As was the case with the predecessor limitation legislation (the Limitation Act1935), the position in Western Australia is that an expiration of the limitation period only bars the plaintiff's right to a remedy rather than barring the plaintiff's cause of action itself. Confirming that position, I note observations of the Court of Appeal of WA in Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127 (Martin CJ, Murphy and Mitchell JJA) at [46(e)] where their Honours observe that 'a statutory limitation bars the remedy rather than right, must be pleaded to be invoked, and can be waived'. See also my observations to that same effect made in Trafalgar West Investments Pty Ltd as trustee for the Trafalgar West Investment Trust v Superior Lawns Australia Pty Ltd [No 7] [2015] WASC 280at [43] - [45] there, in turn, applying the observations by Buss JA (as his Honour then was) in the Court of Appeal in Hewitt v Henderson [2006] WASCA 233.
That same position as is observed by Professor Peter Hanford in the text Limitation of Actions - The Laws of Australia (3rd ed, 2012). Professor Hanford observes that unlike for Western Australia and in the other Australian States and Territories, the position in New South Wales under the Limitation Act 1969 (NSW) is different. For New South Wales, the expiration of a limitation period extinguishes not merely the remedy, but also extinguishes the very cause of action. Considerable care must therefore be taken when contrasting decisions from New South Wales where the running of a limitation period will render a plaintiff's attempt to pursue such a cause of action not maintainable: see [5.1.510] at page 93. To that end, I note McColl JA's reference to s 63 of the Limitation Act 1969 (NSW) in Barrett v TCN Channel Nine at [9].
Appreciation that the running of a limitation period in Western Australia will only bar the remedy and not, say, a (defamation) cause of action itself, delivers some insights towards present circumstances. Any limitation of action defence will usually need to be affirmatively raised and pleaded out by a defendant to take the point. There is, of course, the sometimes glaringly obvious and exceptionally clear engagement of a limitation period as raised by a defendant that would make a grant of leave pointless (see Belgravia at [46(f)]). If that does not happen, or if, say, a defendant waives the opportunity to raise that limitation point, for whatever reason, then the cause of action of the plaintiff stands as fully intact. Given that, to contend that the defendant's writ is a nullity in present circumstances presents as a rather ambitious submission.
Furthermore, the present action was commenced by writ filed in a superior court. That writ is a command of this court to a defendant. To suggest that the writ as issued in present proceedings might simply be put aside by a defendant to be ignored, in effect, as a complete nullity sits inconsistently, on my view, with the sealed command under the process of a superior court.
There is a further consideration, in that if a superior court, hypothetically, were to proceed to issue, say, a default a judgment within the proceedings commenced under the same writ, the ensuing judgment would certainly stand as of full force and effect, until set aside by an order of a superior court to the contrary.
Shortly, I refer to observations made in the Queensland decision of Stone v ACE-IRM Insurance Broking Pty Ltd [2003] QCA 218; [2004] 1 Qd R 173 (McPherson JA and McMurdo J) which reasons discuss difficulties posed for courts dealing with like nullity submissions - as regards proceedings commenced over the years. The Queensland Court of Appeal, in the end, suggests that the better approach is to only use the term 'nullity' for limited circumstances. I respectfully agree and refer to their Honours' observations, particularly McPherson JA at [7] and [8] and McMurdo J between [19] and [27] which I suggest are of force generally.
The defendant's key case authorities
The first case authority that the defendant relies upon is a decision by the New South Wales Court of Appeal in National Mutual Fire Insurance Co Ltd v Commonwealth (1981) 1 NSWLR 400 in particular Glass JA's observations (with which Moffitt P and Samuels JA agreed) at page 408 between E and G. However, on my assessment, the decision turns on the precise terms of s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) in its then terms as regards s 6(4). It is, of course, always open to a sovereign legislature to provide in explicit terms concerning the prerequisites for an action to be commenced by leave, or otherwise. But in all events, I do not assess the National Mutual decision as addressing the present issue concerning circumstances under review, as regards a writ issued prior to a grant of leave pursuant to s 40(2) of the Limitation Act, albeit one day within the outer limit three year extension window.
The next decision relied upon is a local decision of the Full Court in Pilbara Iron Pty Ltd v Bonotto (1994) 11 WAR 348 (Anderson J with whom Wallwork and Owen JJ agreed). That decision concerned the force and effect of s 660 of the then Local Government Act 1960 (WA) concerning a tort action maintainable against a local government authority being required to be commenced within 12 months of the cause of action accruing. However, s 660 also provided an outer limit window of six years from the date at which the cause of action arose upon a grant of leave by a judge to commence the action.
On that appeal an action had been commenced without leave within the six year outer limit period, but the application for leave was not brought until after that limitation period had elapsed. However, the premise of the reasoning of the court was that a determination had been made that the action was not maintainable, as it was statute barred. However, as the Court of Appeal has more recently explained in Belgravia at [51], capacity (there in the context of only a foreshadowed application for an extension of time under s 38 of the Limitation Act 2004, not s 40) to apply for an extension of time under the Limitation Act bears upon the assessment about the action not being maintainable (see Belgravia at [17], [48], [53] and [57]). If there remains scope for an application to be made for the extension of time for leave to be granted applicable to the commencement of an action within the outer three year limitation window, then an action may still be maintainable, if that leave can be obtained.
It will be remembered that in present circumstances the plaintiff issued his writ - albeit then without obtaining leave to appeal - one day inside the outer s 40(3) three year period window closing. In such circumstances it remains theoretically possible if the court were properly persuaded at whatever time the court heard the plaintiff's extension application for the court to grant leave regularising the otherwise defective proceeding (the application being made under s 49(2) and s 43 by contrast to the position in Belgravia where the application was under s 38 and s 43 and the application here was only foreshadowed by the plaintiff if the defendants raised a limitation defence: see [51]). I see no contextual reason in principle why a grant of leave made nunc pro tunc (ie, after the event) might not be applied for and then theoretically granted, even though application is only made after the closing of the three‑year (s 40(3)) window. A grant of that leave would regularise an otherwise defective writ, in effect, retrospectively.
The third authority relied upon by the defendant is a subsequent decision by five justices of the Full Court of the Supreme Court of Western Australia in Matheson v Commissioner of Main Roads [2001] WASCA 402; (2001) 25 WAR 269. That decision concerned s 47A(1) of the predecessor Limitation Act 1935, as regards the expiration of a one year period from the date on which that relevant cause of action accrued. However there was capacity under s 47A(3) for an application for leave to commence an action at any time before the expiration of six years.
The defendant relies on observations of Murray J (with whom Scott, Steytler, Parker JJ and Einfield AJ agreed) to the effect that the plaintiff's action 'was, or might be argued to be, a nullity because it was issued without leave when leave was required' at [34] (see also Murray J's observations at [35]). Significantly, however, it is my assessment of that decision that upon its facts being considered, Mr Matheson had commenced his action by writ after more than one year since his cause of action, despite having earlier applied for and then being refused leave to commence his action. Having already made that application and been refused by a court, for Mr Matheson to effectively ignore that refusal and act unilaterally adds a different dimension of abuse of process to the facts under the evaluation in that decision. Here no prior application for an extension under s 40(2) of the Limitation Act has yet been evaluated or refused, as was the case in that Full Court decision.
Given all that, I would, with respect, prefer the terminology of Mr Matheson's writ as being defective or irregular, rather than ascribing to it the label of nullity.
Nullities and granting leave nunc pro tunc
For circumstances in which a court may grant leave nunc pro tunc I refer to my application of that principle in Martin Bruce Jones as liquidator of Forge Group Ltd (Receivers and Managers Appointed) (In Liquidation) v Sun Engineering (Qld) Pty Ltd [2017] WASC 195 at [81], [84] and [95].
Returning to Stone v ACE-IRM Insurance Broking, McMurdo J had there observed the context of bankruptcy law at [26]:
It is then difficult to regard proceedings as a nullity in the sense that they are void whilst recognising that they can be the subject of a judgment which is valid unless and until set aside. To the extent that the expression is useful, it can only refer to a proceeding which is defective in a way which the court with its various powers, including those conferred by its particular rules of procedure, cannot cure. If there is an apparent remedial power under the procedural rules, the defect is curable and the proceeding should not be described as a nullity. It is the extent of the remedial power which defines what may be remedied, rather than the remedial powers being qualified by a characterisation of something as a nullity according to what was said in other contexts and under different procedural rules.
I note that in Rolfe v Investec Bank (Australia) Ltd [2014] VSCA 38, that Nettle and Beach JJA and McMillan AJA in effect approved those observations and adopted a similar approach (see [86] - [87]). See also Belgravia at [51] and Beech J's observations in Ibrahim v Martin [2012] WASC 338 at [21].
Had the plaintiff's writ been filed after an obviously clear closure of the outer extension period of three years from the time of the defamatory publication (by reference to s 40(3) of the Limitation Act), then the position may be different. Even so, in Western Australia a limitation of action point must actually be affirmatively taken by a defendant and usually pleaded out: see Belgravia at [46(e)] and [46(f)]. For such circumstances, my view would still be that the correct terminology for such a writ at commencing action would be that it is defective, rather than a 'nullity'.
None of that, of course, is to suggest that the course taken by the plaintiff by the filing of his writ on the last day before a closure of the three‑year window was a pathway that is to be commended as desirable or sensible. Quite plainly the appropriate course as is contemplated via s 43 of the Limitation Act is for the extension application to be made by an originating summons and for leave to be obtained beforehand. Where the application is brought in the context of existing proceedings (say by way of augmentation to an action running against defamatory publications already pleaded like, for instance, Wookey v Quigley [No 2]) then the extension application could then be brought by a chamber summons within that action. See s 43(1)(a) of the Limitation Act and, as regards interlocutory applications brought in chambers: see RSC O 59 r 3 and r 4. Here there was no existing action within which an extension application could be brought. The plaintiff's proceeding pursuing leave to commence by s 40(2) should officially then have been brought by an originating summons, rather than by am origination motion. The chapeau to s 43(1) of the Limitation Act uses the terminology of summons and by s 43(3) the plaintiff is required to serve a copy of the summons on each person against whom the action, that is the subject of the extension application proposed to be brought. That mechanism directs attention to RSC O 58 r 14(1) and to form 74, where an originating summons is to be served and an appearance required of a defendant.
On my assessment then, the plaintiff's writ as filed is defective, but it is not to be termed as a nullity. Because it was irregularly filed within a day of the full running of the absolute three‑year (3) period as set by s 40(3) of the Limitation Act, there still remained scope for an application by reference to s 40(2) and s 43(1)(a) and s 43(5) to be made seeking the extra time -akin to the s 38 extension application as was foreshadowed in Belgravia (see [51]) but which had not been filed there.
Moreover, in Belgravia the court (Martin CJ, Murphy and Mitchell JJA) said at [53]:
... when s 38 and s 43 of the Limitation Act are taken into account, it does not necessarily follow from the fact that there was no limitation period 'current' at the time of the issue of the writ, that a limitation defence will inevitably succeed.
Here, substituting s 40(2) for s 38 in the above citation, within present circumstances, the same outcome is, I would suggest, indicated. Nor in that evaluation have I overlooked the express terms of s 38(1) which were applicable to the Belgravia facts and noting that s 38(4) expressly excludes that section's application to a s 40 situation. Nevertheless, that makes no difference to my conclusions in the end. The time of the making of the application under s 40(2) and the hearing of such application are not material considerations. As long as the three-year absolute cut-off period under s 40(3) has not fully expired, then an extension application under s 40(2) still carries a potential utility by the possible obtaining of leave. And even if the absolute three-year period had fully run, that still, in my assessment, would not render a writ a nullity. It would instead only render the writ as incurably defective upon an application of a defendant to that end, in my respectful view.
Conclusion
In all the circumstances, I would be amenable to grant an extension of time pursuant to s 40(2) of the Limitation Act to 11 January 2018. However, an extension of that duration is not enough to redress the underlying defectiveness of the plaintiff's action, as it was commenced by his writ of 1 June 2018.
I will publish these reasons and allow the parties 14 days to confer over orders giving effect to these reasons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DW
Associate to the Honourable Justice Martin17 DECEMBER 2019
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