Legal Research
Cases
Meyer v Solomon

Meyer v Solomon

Case [2019] WASC 458 17 December 2019

Limitation Act 2005 (WA)

Type to search within this case.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Meyer v Solomon

Details

AGLC: Meyer v Solomon [2019] WASC 458
Case: [2019] WASC 458
Decision Date: 17 DECEMBER 2019

CaseChat Overview and Summary

In Meyer v Solomon, the respondent, Meyer, sought leave to commence proceedings against the applicant, Solomon, for allegedly defamatory publications. The application was made three years after the publication, but one day before the expiry of the statutory limitation period under the Limitation Act 2005 (WA). The primary issue before the court was whether the plaintiff could be granted leave to commence proceedings outside the 12-month statutory limitation period. The court considered whether it was not reasonable in the circumstances for the plaintiff to commence proceedings within 12 months of the publication and whether the court had to grant leave to the full extent of the three-year outer limit if the basis was shown to extend beyond 12 months.

The court held that the threshold for determining whether it was not reasonable in the circumstances for the plaintiff to commence proceedings within 12 months had been met. The court found that the plaintiff had not acted reasonably in delaying the proceedings due to the plaintiff's own actions. The court also held that its power to grant leave under section 40 of the Limitation Act was at large within the three-year outer limit. However, the court did not grant leave to the full extent required to redress the defectiveness of the writ. The court found that the potential to grant leave after the event (nunc pro tunc) was not available in this case because the writ filed out of time was a nullity. The court granted leave to the plaintiff to commence proceedings but not to the full extent of the three-year outer limit.

Orders