Munn v Tunks

[2013] NSWSC 1263

Supreme Court

New South Wales

Medium Neutral Citation:	Munn v Tunks [2013] NSWSC 1263
Hearing dates:	2 September 2013
Decision date:	03 September 2013
Before:	McCallum J
Decision:	Proceedings dismissed
Catchwords:	PROCEDURE - service of originating process out of State of New South Wales - whether service effective - where originating process no longer valid for service within the State - whether time within which process valid for service should be extended
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 6.2(4) Service and Execution of Process Act, s 16
Cases Cited:	Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 Heaven v Road and Rail Wagons Ltd [1965] 2 QB 355 Munn v Tunks (Supreme Court of New South Wales, Nicholas J, 6 May 2013, unreported) Wakim v Coleman [2008] NSWSC 1377 Wakim v Coleman [2010] NSWCA 221
Category:	Interlocutory applications
Parties:	Alasdair John Munn (plaintiff) Graeme Tunks (first defendant) Anndrette Tunks-White (second defendant)
Representation:	Counsel: Plaintiff in person T Goldberg (solicitor)(defendants) Solicitors: Turner Freeman (defendants)
File Number(s):	2012/254066
Publication restriction:	None

Judgment

1. HER HONOUR: These are proceedings for defamation commenced by Mr Alasdair Munn by statement of claim filed 15 August 2012. The statement of claim named five defendants. It complained of a number of defamatory statements but failed to identify the publication of those statements with any specificity and failed to articulate the defamatory imputations allegedly conveyed by them.

1. The third, fourth and fifth defendants were duly served with the originating process and entered an appearance but the first and second defendants were not. A previous attempt by Mr Munn to serve an amended version of the pleading on them was declared ineffective: Munn v Tunks (Supreme Court of New South Wales, Nicholas J, 6 May 2013, unreported).

1. The application presently before the Court concerns Mr Munn's subsequent purported service on the first and second defendants. Specifically, there is before the Court a notice of motion filed by the first and second defendants seeking declaratory relief in respect of the most recent attempt by Mr Munn to effect service of the amended version of the pleading.

1. Separately, during hearing of the application yesterday, Mr Munn orally sought an extension of the period within which the amended pleading is valid for service.

1. I have concluded that the period within which the amended statement of claim is valid for service should not be extended and, accordingly, that the question whether the service of the pleading was effected in accordance with the Service and Execution of Process Act 1992 is moot. What follows is that it is not necessary to make the orders sought by the first and second defendants and that the proceedings must be dismissed.

1. These are my reasons for reaching those conclusions.

1. As already noted, the original statement of claim was filed on 15 August 2012. Although it did not comply with the requirements of a proper pleading of a cause of action in defamation, it did identify the dates of the publications sought to be sued on as being 17 and 18 August 2011. The claim was accordingly brought within the limitation period for the cause of action of defamation but only by two days.

1. It appears from the Court file that the matter came before Nicholas J in the defamation list on 5 November 2012. On that occasion the third, fourth and fifth defendants evidently took objection to the form of the pleading. His Honour ordered the plaintiff to serve an amended pleading by 19 November 2012 and re-listed the matter on 3 December 2012 for any further argument. The amended pleading was filed in court on that date.

1. The first and second defendants reside outside the State of New South Wales, apparently at the moment living in the Northern Territory. The plaintiff first attempted to effect service of the amended pleading on them within the six months for which an originating process is valid for service (see rule 6.2(4) of the Uniform Civil Procedure Rules 2005). That is evidenced, on the material before me, by the fact that the court file records Mr Goldberg, solicitor, who appears for the first and second defendants on the present application, first appearing on 12 February 2013, that date being within three days of the expiration of the validity of the pleading for service.

1. However, as already noted, Nicholas J set aside that purported service of the pleading. The principal reason service was then set aside was the fact that the plaintiff had failed to serve the originating process with the attachment required under the Service and Execution of Process Act. Specifically, section 16 of that Act requires there to be attached to an originating process a document in the form of Form 1 in the schedule to the Act.

1. When the amended pleading was again sought to be served by Mr Munn, he contends that there was attached to it a Form 1 in each instance. The evidence relied upon by him to support that contention was to be found in the affidavits of two process servers retained by him, Mr Leonard Robinson who swore an affidavit dated 27 August 2013 and Mr Cameron Dunbar who swore an affidavit of the same date. Each stated that, on checking the documents in question, they noted that a Form 1 was attached to the documents (see paragraph 6 of each affidavit).

1. No copy of the Form 1 was annexed to their affidavits but, having regard to the history of the proceedings, the terms of the judgment of Nicholas J and my observations of the persistence of Mr Munn and his attention to detail in bringing his cause before the Court, I am satisfied that, on the balance of probabilities, the originating process was served with a Form 1 attached to it, as stated in those affidavits combined with the affidavit of Mr Munn of 29 August 2013. In Mr Munn's affidavit, he states that the material he served on the first and second defendants was that returned to him by the process servers when they were unsuccessful in effecting personal service. Accordingly, but for the issue of the validity of the pleading for service, I would have been satisfied that service had been validly effected in accordance with the Act.

1. The difficulty however is the question of validity for service. Rule 6.2 of the Uniform Civil Procedure Rules provides that an originating process must be served on each defendant. In accordance with sub-rule 6.2(4), an originating process is valid for service in proceedings in this Court for six months after the date on which it is filed.

1. As noted by Mr Goldberg during argument, sub-rule (5) provides that failure to serve originating process within the time limited by sub-rule (4) does not prevent the plaintiff from commencing fresh proceedings by filing another originating process. Mr Goldberg submitted that, taken together, those rules should be construed as prohibiting any extension of the time within which a pleading is valid for service.

1. There is no such prohibition. There is clear authority for the proposition that the period within which an originating process is valid for service may be extended by the Court under the rule dealing with extension of time generally, rule 1.12.

1. I had occasion to consider the exercise of that power in Wakim v Coleman [2008] NSWSC 1377. In that decision I concluded, after reviewing the authorities to which my attention had been drawn by counsel in that case, that the test was whether there was good reason for granting the extension (at [40]). My decision on that issue was upheld by the Court of Appeal in Wakim v Coleman [2010] NSWCA 221 at [27] to [38].

1. In my decision at first instance in Wakim I observed that, where an extension of the validity of the originating process for service is sought in circumstances where to grant the extension would deprive a defendant of the benefit of an accrued limitation defence, the Court should not grant the extension, citing Heaven v Road and Rail Wagons Ltd [1965] 2 QB 355. I further noted that, in that case, it was said that there must be exceptional circumstances before leave would be given but that that test had subsequently been disapproved.

1. The Court of Appeal confirmed that the test in this jurisdiction is whether there is good reason for granting the extension, as I had held in my judgment at [40]. However, nothing in the decision of the Court of Appeal derogates from the proposition I stated as to the relevance of the expiration of a limitation period.

1. That is plainly a relevant circumstance in the present case, so far as the pleading reveals. The amended statement of claim currently rests on the posting of the publications on the Internet in August and September 2011.

1. In addition, the pleading complains of re-publication of that matter as late as January 2012. However, the re-publications are relied upon only as causes of action as against the third, fourth and fifth defendants, against whom the proceedings have been discontinued. No cause of action is pleaded against the first and second defendants as being liable for the re-publications. In any event, having regard to the relevant dates, it makes no difference.

1. The point is that, even by the time of the hearing of the first round of argument as to the validity of the service purportedly effected by Mr Munn (6 May 2013), more than 12 months had passed since the date on which the publications were posted on the website (August 2011) and more than six months had expired since the filing of the originating process (August 2012).

1. The principle of publication is of course that it occurs when an article is downloaded from the Internet in a form able to be comprehended by a reader, not when it is posted on a website (see the decision of the High Court in Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575). That is the time from which the limitation period for a cause of action in defamation runs. However, as noted by Mr Goldberg during argument, the amended statement of claim provides no particulars of the date of any downloading of any of the matters complained of and accordingly there is before the Court simply no pleading of any cause of action inside a 12-month period from the date of the second purported service of the amended statement of claim.

1. I should note in that context that the Court of Appeal in Wakim expressly held that the amendment of a pleading does not de facto extend the period of validity for service of the originating process: at [17] and [19].

1. It follows that, in accordance with the authorities cautioning against extending the period of validity for service of originating process and in the absence of any good reason established for departing from those authorities, I do not think there should now be an extension of the period of validity for service of the originating process. Accordingly the proceedings must be dismissed.

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Decision last updated: 09 September 2013