Otto (a.k.a. Ashworth) v Gold Coast Publications Pty Ltd

[2017] NSWDC 101

District Court

New South Wales

Medium Neutral Citation:	Otto (a.k.a. Ashworth) v Gold Coast Publications Pty Ltd [2017] NSWDC 101
Hearing dates:	27 April 2017
Date of orders:	12 May 2017
Decision date:	12 May 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiff’s notice of motion dismissed; application for extension of time in relation to publications prior to 9 December 2016 refused. (2) Plaintiff pay defendants’ costs of and incidental to the application, including (where applicable) the costs of the publications for which the extension of time has been refused. (3) Plaintiff file a Further Amended Statement of Claim in 14 days. (4) Matter stood over to Thursday 22 June 2017 for an imputations argument in the Defamation List.
Catchwords:	TORT – defamation – online and print publications - application for extension of limitation period for print publications and the portion of the online publications falling outside the limitation period – plaintiff commences proceedings immediately prior to the expiry of the limitation period but sues the wrong defendants – plaintiff aware of limitation period at all relevant times – whether the “sins of the solicitors” in suing the wrong defendants should be sheeted home to the plaintiff - whether it was not reasonable of the plaintiff not to have commenced the proceedings before expiry of the limitation period – application for extension of time refused
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 64 and 65 Defamation Act 2005 (NSW), s 23 Limitation Act 1969 (NSW), ss 14B and 56A Printing and Newspapers Act 1973 (NSW) Printing and Newspapers Act 1981 (Qld)
Cases Cited:	Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 Barrett v TCN Channel Nine Pty Ltd [2016] NSWSC 1663 Brooks v Fairfax Media Publications Pty Ltd [2015] NSWSC 986 Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90 Cross v Queensland Newspapers Pty Ltd [2006] NSWSC 1340 Dow Jones & Co Inc v Gutnik (2002) 210 CLR 575 Duke of Brunswick v Harmer (1849) 14 QB 185; [1849] Eng R 915; (1849) 117 ER 75 Firth v State of New York (2002) 98 NY 2d 365; (2002) 775 NE 2d 463 Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90 Ghosh v TCN Channel Nine Pty Ltd [2014] NSWDC 151 Google Inc v Trkulja [2016] VSCA 333 Lazarus v Deutsche Lufthansa (1985) 1 NSWLR 188 Maamary v Pepsico Australia Pty Ltd & Ors [2001] NSWCA 375 McAuliffe v Bell [2005] NSWSC 214 Mulpha Hotel Pty Ltd v Goff [2012] 1 Qd R 226 Otto v Dailymail.com Australia Pty Ltd [2017] NSWDC 32 Otto v Nine Network Australia Pty Ltd [2016] NSWDC 308 Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 Van Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953 York v Morgan (2015) 20 DCLR (NSW) 341
Texts Cited:	D K Rolph, “A critique of the national uniform defamation laws” (2008) 16 TLJ 207 Stephanie Rigg, “The Duke and his manservant in a world of online defamation” (2016) 21 MALR 424
Category:	Procedural and other rulings
Parties:	Plaintiff: David Otto (a.k.a. David Ashworth) First Defendant: Gold Coast Publications Pty Ltd (ACN 009 696 511) Second Defendant: Queensland Newspapers Pty Ltd trading as News Queensland (ACN 009 061 778)
Representation:	Counsel: Plaintiff: Mr M K Rollinson Defendants: Ms L Mullins (solicitor)   Solicitors: Plaintiff: Carters Law Firm First Defendant: Gold Coast Publications Pty Ltd Second Defendant: Queensland Newspapers Pty Ltd trading as News Queensland
File Number(s):	2016/338258
Publication restriction:	None

Judgment

The plaintiff’s application

1. The plaintiff by notice of motion filed on 16 March 2017 seeks orders as follows:

1. An order under s 56A Limitation Act 1969 (NSW), extending until 9 December 2016, being the date of filing of the Amended Statement of Claim, the limitation period under s 14B of that Act in respect of the plaintiff’s causes of action against the defendants.

2. Such other orders as the Court sees fit.

3. Costs.

Publications about the plaintiff

2. The plaintiff has sworn a brief affidavit dated 1 March 2017 (Exhibit A), upon which he has not been cross-examined, about a series of publications about him, commencing with a television programme, A Current Affair, broadcast on 24 July 2015. In the course of argument, the parties referred to other publications about which the plaintiff had taken action. A chronology was not provided. Doing the best I can, these publications seem to be:

1. The broadcast on A Current Affair on 24 July 2015, which was available for downloading thereafter. The plaintiff commenced proceedings in first the Supreme Court of Queensland on 27 July 2015 (which he discontinued in August 2015). As is set out in [13] of my judgment in Otto v Nine Network Australia Pty Ltd [2016] NSWDC 308, the plaintiff sent an email to Channel Nine on 18 August 2015 threatening further proceedings if the matter complained of was not taken down. He then brought proceedings in the District Court of Queensland, which are discussed in more detail below. On 22 July 2016, he commenced proceedings in the District Court of New South Wales in this court: Otto v Nine Network Australia Pty Ltd.

2. An article in the Daily Mail dated 15 November 2015, which was available for downloading thereafter. The plaintiff commenced proceedings for defamation on 11 November 2015: Otto v Dailymail.com Australia Pty Ltd [2017] NSWDC 32. The plaintiff does not provide any information in his affidavit as to his knowledge of this publication or the circumstances upon which he sought legal advice and commenced proceedings.

3. A publication in the Gold Coast Bulletin dated 14 November 2015 “and continuing thereafter” (paragraph 4 of the statement of claim filed in these proceedings on 11 November 2016, the same date as the proceedings against the Daily Mail were commenced). This is the first of the publications the subject of this application.

4. A publication in the Courier-Mail dated 13 November 2015 “and continuing thereafter” (paragraph 4 of the statement of claim filed in these proceedings on 11 November 2016).

3. At the time the publications in paragraphs (c) and (d) above came to the plaintiff’s attention, he was already anxious to protect his reputation by commencing court proceedings. As is set out in Otto v Nine Network Australia Pty Ltd, shortly after filing an originating application in the Supreme Court of Queensland, the plaintiff sought legal advice from a solicitor and a barrister. Acting on that advice, he discontinued those proceedings in August 2015. He acknowledges, in his affidavit, being aware of the limitation period “in 2015” and the most likely reason for this is that he received legal advice to this effect in the course of or after the Supreme Court of Queensland proceedings.

4. It was in these circumstances that, in early November 2015, he received a telephone call from a journalist employed by the Gold Coast Bulletin, who asked him questions about a Ms Shayla Chandler. The plaintiff then became aware of one of the publications the subject of this application, namely the Gold Coast Bulletin article of 14 November 2015, as Ms Chandler sent him a photocopy a few days after publication.

5. The remaining publication in this application, namely the Courier-Mail, was published on 13 November 2015, but according to paragraph 12 of the plaintiff’s affidavit, he did not become aware of that publication until approximately 18 October 2016, following a Google search on or about the same date (whether that Google search was carried out by the plaintiff or some other person is unclear).

6. On 2 December 2015 the plaintiff, still acting for himself, brought proceedings in the District Court of Queensland in relation to the A Current Affair broadcast for a second time. The court documents and judgment have not been provided to this court; all that I have been told is that the plaintiff was unsuccessful.

7. The plaintiff states that, in the course of that application, a copy of the Gold Coast Bulletin was tendered by his opponents:

“7. On 2 December 2015, still acting for myself and without legal advice, I brought another claim, in the District Court of Queensland, against Patricia Higgins and Grant Williams, in regard to the Current Affair item (District Court Brisbane, case no. 4535 of 2015). On about 11 December 2015 I received from Macpherson Kelley, the solicitors for the respondents, Ms Higgins and Mr Williams, in that case, a copy of an affidavit dated 11 December 2015 made by Christian Dreyer, a solicitor of that firm (‘Dreyer affidavit’). Exhibit CHD-2 to that affidavit was a copy of the [Gold Coast Bulletin] article dated 14 November 2015. My claim for an injunction against Higgins and Williams came before Judge McGill in the District Court Brisbane on 11 December 2015. I appeared for myself. The judge refused to grant an injunction.”

8. The plaintiff then decided to seek legal advice once again:

“8. In hindsight I realised that I should have taken legal advice before bringing the above claims in Queensland.

9. I became aware in 2015 that there is a one year limitation period for bringing claims for defamation. After December 2015 I still wished to bring a claim in regard to the Current Affair item and the [Gold Coast Bulletin] article, but I found it difficult to find lawyers who would act for me on a reduced fee or contingent basis, as I do not receive a regular income. In June 2016, I contacted Mr Clive Evatt, barrister in Sydney, who referred me to Carters Law Firm in Sydney. I retained Carters and they briefed Mr Clive Evatt of counsel in the matter.”

9. The plaintiff gave what he calls “the Current Affair item” to his legal advisers in June 2016, but not the Gold Coast Bulletin article. No explanation is given for this, or for what advice he sought and received in relation to the Daily Mail article, although his legal representatives considered the proceedings in relation to the A Current Affair broadcast required them to act “urgently” because of the imminent expiry of the limitation date:

“10. On 22 July 2016, an action for defamation in this Court regarding the Current Affair item was filed on my behalf by Carters (No. 2016/221796, Otto v Nine Network Australia). This was done urgently as the one year defamation period was about to expire.”

10. Even after those proceedings were commenced, the plaintiff took no further steps in relation to the Gold Coast Bulletin article until 2 September 2016:

“11. On 2 September 2016 I emailed to Mr Hansen of Carters the [Gold Coast Bulletin] article which I had copied off the internet. On about 17 October 2016 I was advised by Mr Hansen that I had a claim for damages in relation to this article, and the last date to file such a claim was 14 November 2016.”

11. The day after the plaintiff received this advice from Mr Hansen (namely 18 October 2016) he “became aware from an internet ‘Google’ search of the Courier-Mail article dated 13 November 2015”. It is unclear from this statement what triggered this search, or by whom it was performed. Whatever the source, the plaintiff’s legal advisers were in no doubt about the defamatory nature of this publication and, I infer from the chronology of events, were able to advise him on the same day that he had what he calls “a further claim for damages based on the Courier-Mail article” (Exhibit A, paragraph 12).

12. The plaintiff sets out that on or about 18 October 2016 he instructed his solicitor “to file such claim [sic] in relation to both articles”. This was in addition to the internet publication, which remained online at all relevant times.

13. The reason why it took from 18 October 2016 until 11 November 2016 to prepare and file the statement of claim is unexplained. Nor is there any reference to when or in what circumstances the plaintiff became aware of the Daily Mail article.

The plaintiff sues the wrong defendants

14. Regrettably, as both the plaintiff and his solicitor set out in their affidavits, the statement of claim in relation to these publications contained a catastrophic error. That error was to identify the first defendant as Nationwide News Pty Ltd and second defendant as News Corp Australia when in fact each of the publications the subject of these proceedings was published by another entity entirely; in the case of the first matter complained of by Gold Coast Publications Pty Ltd (ACN 009 696 511) and in the case of the second matter complained of by Queensland Newspapers Pty Ltd trading as News Queensland (ACN 009 061 778).

15. The reasons for these errors are set out in the affidavit of David Hansen sworn on 20 April 2017 (Exhibit B). This affidavit states:

“2. On or about 18 October 2016 I received instructions to commence proceedings in relation to the articles which are the subject of these proceedings, namely a Gold Coast Bulletin article dated 14 November 2015 which appeared in print and on the internet and a Courier Mail article dated 13 November 2015 which appeared on the internet. Mr Clive Evatt of counsel was requested to draft the appropriate initiating documents.

3. On the afternoon of Friday 11 November 2016 Mr Evatt emailed to me a Statement of Claim naming Nationwide News Pty Ltd and News Corp Australia as Defendants. Mr Evatt also emailed me a Statement of Claim naming Dailymail.com Australia Pty Ltd as a Defendant. That Statement of Claim related to an article published on the Dailymail Australia website on 15 November 2015. On 11 November 2016 I caused the two Statements of Claim to be filed online with the District Court.

4. When I received the Statements of Claim from Mr Evatt, I assumed Mr Evatt was aware of the correct names of the publishers who published the articles and it did not occur to me to check the names provided by Mr Evatt. I was aware that Mr Evatt is an experienced barrister who practices primarily in the area of defamation law.

5. By letter dated 2 December 2016, I was informed by the solicitor for Nationwide News that with respect to the First Defendant, the wrong company had been sued. The solicitor also pointed out that the Second Defendant named was a business name. Upon receiving that letter, I forwarded a copy to Mr Evatt. I also spoke with Mr Evatt to enquire as to where he obtained the names of the Defendants. Mr Evatt said to me words to the effect, “I did a Google search”.”

16. As a result of this error, the statement of claim filed on 11 November 2016, a matter of days before the expiry of the limitation period (and not served until 17 November 2016) was served on the wrong defendants.

17. The solicitors for the plaintiff were notified of this on 2 December 2016 by the solicitors for Nationwide News Pty Ltd. The amended statement of claim was then filed on 9 December 2016 and served shortly thereafter.

18. The period of delay is a relatively short one, namely 25 or 26 days respectively after the expiry of the one year after the print and first online publications and 28 days after the original statement of claim was filed.

19. The period of delay does not mean the end of the plaintiff’s claim. Due to the manner in which the statutory regime for limitation periods for online publications has been interpreted by the courts to date, all that the plaintiff will lose is the chance to rely upon the print copies published on 13 and 14 November 2015 and that period of time for the online publications which falls outside the date on which this claim is filed (9 December 2016).

20. As noted at the end of the judgment, findings of this kind effectively render the limitation period artificial, inconsistent and indeed futile, but the purpose of this judgment is to determine this application in accordance with existing authority, not to deplore the inadequacy of the uniform legislation’s inability to deal with limitation and other technology-related issues arising from online publication.

The legislation and relevant principles of law

21. By way of clarification, the defendants say that the matters complained of were published on 14 November 2015 (not 13 November 2015 in relation to the Courier-Mail article), but nothing turns on this. The limitation period therefore expired on 14 November 2016 pursuant to s 14B Limitation Act 1969 (NSW).

22. Section 56A Limitation Act 1969 (NSW) provides:

“56A Extension of limitation period by court

(1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action.

(2) A court must, 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 1 year from the date of the publication, extend the limitation period mentioned in section 14B to a period of up to 3 years running from the date of the publication.

(3) 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 subsection (2).”

23. The question is the meaning of the phrase “not reasonable in the circumstances”. This requires a consideration of the plaintiff’s conduct for the whole of the period prior to the expiry of the limitation period: Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175. Applications of this nature generally turn on their facts.

24. I propose to examine the following issues:

1. When and how the plaintiff became aware of the one year limitation period;

2. When and how the plaintiff became aware of each of the matters complained of;

3. The degree to which the conduct of the plaintiff’s legal representatives, and their failure to act upon his instructions within the limitation period (in that they sued the wrong defendants), should be sheeted home to the plaintiff.

The plaintiff’s knowledge of the limitation period

25. The plaintiff’s affidavit sets out that he commenced three proceedings for defamation against other publishers regarding other publications both before and during the limitation period in relation to the publications in these proceedings, namely:

1. In relation to A Current Affair, in the Supreme Court of Queensland, on 27 July 2015 (paragraph 5). These claim, which was tendered in Otto v Nine Network Australia Pty Ltd [2016] NSWDC 308 (David Ashworth a.k.a. David Otto v Nine Network Australia Pty Ltd (District Court proceedings 2016/221796)), sought “$3,018,960 “being total damages less punitive damages payable to the state [sic]”” (at [7]) and removal of material republished on other websites.

2. In relation to A Current Affair, in the District Court in Queensland, on 2 December 2015 (paragraph 7).

3. In relation to the A Current Affair programme, by filing a statement of claim in this court on 22 July 2016 (David Ashworth a.k.a. David Otto v Nine Network Australia Pty Ltd (District Court proceedings 2016/221796)), which he acknowledges was “done urgently as the one year defamation period was about to expire” (paragraph 10).

4. In addition, although not referred to by the plaintiff, he commenced proceedings in this court on 11 November 2016 in relation to the Daily Mail article (David Otto v Dailymail.com Australia Pty Ltd (District Court proceedings 2016/00338264)).

26. As noted above, the proceedings in (c) and (d) above were commenced a matter of a day or two before the expiry of the limitation period, which the plaintiff had been aware of since “2015” (paragraph 9).

27. The defendants submit, and I accept, that whatever difficulties the plaintiff may have had in obtaining advice from solicitors prior to consulting his present solicitor in June 2016, he was aware, well prior to publication of the matters complained of, that there was a one-year limitation period. He had received advice from at least one solicitor and one barrister during this period of time as to how to commence proceedings.

28. After the plaintiff consulted his current solicitors, they briefed Mr Evatt. It is not in dispute that in addition to the plaintiff being aware of the limitation period prior to his consultation of these practitioners, he would have been aware very early on about the one year limitation period in that they commenced proceedings on his behalf on 22 July 2016 in circumstances of some urgency by reason of the imminent expiry of the limitation period. In addition, as is set out in paragraph 11 of the plaintiff’s affidavit, he was advised by Mr Hansen on 17 October 2016 that the last date to commence these proceedings was 14 November 2016. How in these circumstances can it be said that it was not reasonable in the circumstances for the plaintiff to have commenced proceedings prior to 14 November 2016?

The plaintiff’s knowledge of the additional matter complained of

29. Although the plaintiff had been aware of both the A Current Affair publication and the Gold Coast Bulletin publication very shortly after these were published, the plaintiff says that he only became aware of the Courier-Mail article on “about 18 October 2016”. He was, however, advised that same day that he had a further claim for damages based on that article, and gave instructions to Mr Hansen to file a statement of claim in relation to both these articles, as well as the online publications.

30. Ms Mullins submitted that it was hard to believe that experienced defamation lawyers, confronted by a client with at least two defamatory publications of some antiquity, would not have carried out a Google search in order to ascertain whether there were further publications where the limitation period was or could be close to expiry. Ms Mullins also submitted that it was unlikely that a person such as the plaintiff, who is sufficiently protective of his reputation to commence his own court proceedings twice, would not have made a similar search. While these matters do seem unlikely (particularly in light of the statement attributed to Mr Evatt that he carried out a Google search in relation to the names of the defendants), I must be cautious in drawing inferences of this sort from the affidavit material of the plaintiff.

31. However, what cannot be in dispute is that the plaintiff had adequate knowledge of each of the matters complained of and of who published them. He had this information in sufficient time prior to the commencement of the limitation period. The main issue is the degree to which the plaintiff’s solicitor’s incompetence in suing the wrong defendant should be sheeted home to the plaintiff.

The conduct of the plaintiff’s legal representatives

32. It is not uncommon, in personal injury proceedings, for limitation periods to expire due to errors or inaction by a solicitor who has sued the wrong defendant. For example, in McAuliffe v Bell [2005] NSWSC 214, where solicitors who were advised they had sued the wrong defendant failed to correct their mistake, leave was granted, on the basis that the plaintiff, a minor, had been wholly reliant upon his legal representatives. Similarly, in Mulpha Hotel Pty Ltd v Goff [2012] 1 Qd R 226, where the solicitors for the plaintiff sued the wrong defendant because they relied upon information given to them by the solicitors for the correct party, time was extended.

33. Courts have been generous in this regard because ascertaining the true identity of a tortious wrongdoer in personal injury proceedings can sometimes be difficult (see, for example, Maamary v Pepsico Australia Pty Ltd & Ors [2001] NSWCA 375). That was not the case when the uniform legislation was enacted because, in the days before the Internet and social media began to dominate publishing, newspapers and broadcasters were obliged by law to disclose the corporations liable for publication, by a series of legislative provisions such as the Printing and Newspapers Act 1973 (NSW) and the Printing and Newspapers Act 1981 (Qld). The latter Act would apply to the print edition of the two Queensland newspaper articles and, as Ms Mullins pointed out, both newspapers correctly identified the publishers in the newspaper, in accordance with their legislative obligations.

34. However, commencing proceedings against the wrong defendant is only the last of the mistakes made by the plaintiff’s legal representatives. Ms Mullins submits that the first was in not making a more general inquiry, in June 2016, as to other publications by a Google search. The plaintiff’s legal representatives must have seen the affidavit material for the failed December 2015 Supreme Court application for an injunction concerning A Current Affair, where the Gold Coast Bulletin article was relied on by the defendants, presumably as to the futility of granting an injunction where the allegations about the plaintiff had achieved wide currency.

35. Whether or not the plaintiff’s legal advisers had seen the Gold Coast Bulletin prior to the plaintiff eventually sending it to them on 2 September 2016, they certainly took their time advising the plaintiff that he had a cause of action in relation to each of these publications, which they did not do until 18 October 2016 (paragraph 11).

36. The next period of delay which is difficult to explain is the period between 18 October 2016 and 11 November 2016. What took the plaintiff’s solicitor so long to draft and file proceedings in a claim which was otherwise of a straightforward nature?

37. Finally, the plaintiff’s solicitor became aware of the mistake as to the limitation period on 2 December 2016 but no statement of claim was filed until 9 December 2016, a week later. While a week may not seem long in limitation terms, it should be noted that commencing proceedings only a few days out of time was considered fatal in Van Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953.

The explanation for suing the wrong defendant

38. In his affidavit, the plaintiff states at paragraph 14:

“14. I am informed by my lawyers that they relied on an internet ‘Google’ search of which indicated that one or both of the two companies named, both belonging to the News Limited group of media companies, was or were the publishers of the [Gold Coast Bulletin] and the Courier-Mail.”

39. Ms Mullins submits that this is inconsistent to the reference to Mr Evatt doing “a Google search” (set out in Mr Hansen’s affidavit), and that this paragraph is “nonsensical”, because:

1. It does not make any sense for the plaintiff’s legal representatives to search for a URL address that they already know.

2. Further, it does not make any sense that they would search for that URL address when trying to identify the publisher of the Gold Coast Bulletin or the Courier-Mail. It indicates the plaintiff’s legal representatives were already aware of the URL address “ and believed that News Corp Australia may be the publisher.

3. An internet Google search for the term “ does not provide any search results indicating that Nationwide News Pty Limited or News Corp Australia published the Gold Coast Bulletin or the Courier-Mail (Annexure A to the affidavit of Larina Mullins affirmed on 22 March 2017).

4. If the plaintiff or his legal representatives had looked at editions of the Gold Coast Bulletin newspaper on the date of publication (on the page opposite the matter complained of) or on the date of filing the Statement of Claim, they would have seen the notice naming the publisher as Gold Coast Publications Pty Ltd (see Annexures B and C to Ms Mullins’ affidavit).

5. If the plaintiff or his legal representatives had conducted a search for the owners of goldcoastbulletin.com.au and couriermail.com.au, they would have correctly identified the publishers (see Annexure D to Ms Mullins’ affidavit).

6. If the plaintiff or his legal representatives had conducted a search for the business names “Gold Coast Bulletin” and “Courier-Mail”, they would have correctly identified the publishers (see Annexure E to Ms Mullins’ affidavit).

7. If the plaintiff or his legal representatives had searched the website for previous defamation judgments involving the Gold Coast Bulletin and the Courier-Mail, they would have correctly identified the publishers (see Annexures F and G to Ms Mullins’ affidavit) as well as seen their own names as the persons acting for the plaintiff in some of those cases (e.g. Cross v Queensland Newspapers Pty Ltd [2006] NSWSC 1340; Ghosh v TCN Channel Nine Pty Ltd [2014] NSWDC 151).

8. Although not referred to by the parties, I consider that the plaintiff and his legal advisers would have been on notice of the Gold Coast Bulletin) from the moment they saw the Daily Mail because the Gold Coast Bulletin article is referred to repeatedly in it (see the Annexure to my judgment in Otto v Dailymail.com Australia Pty Ltd).

40. The defendant submits that the plaintiff cannot establish that it was not reasonable to commence proceedings prior to the expiry of the limitation period on the facts of this case because:

1. The series of delays by the plaintiff as well as his legal advisers up to 11 November 2016, when the defective statement of claim was filed, are unexplained.

2. The failure to make the most basic enquiries as to the identity of the defendants cannot be explained by the Google searches. This is not a case where there could ever have been any doubt about the identity of the defendants, both of whom were well-known to the plaintiff’s counsel and solicitors.

The plaintiff’s submissions

41. Mr Rollinson submitted that the plaintiff laboured under the disadvantage of representing himself for at least half of the limitation period, in that from November 2015 until June 2016, he was unable to find legal advisers who would act for him on the basis of a “no win, no fee” agreement. It is submitted that in those circumstances it was not reasonable for the plaintiff to have commenced proceedings for this period (to June, 2016) and, by implication, until he gave the matters complained of to his solicitors on 2 September and 18 October 2016 respectively. Thereafter, he was entitled to rely upon his solicitors to comply with his instructions to commence proceedings.

42. A similar argument was raised before me in York v Morgan (2015) 20 DCLR (NSW) 341. In Mr York’s case, he lived in a remote part of New South Wales and had difficulty finding legal advisers at all, let alone any who were knowledgeable about the law of defamation; in the end, he commenced proceedings without assistance, but outside the limitation period.

43. There is no such evidence in this case. To the contrary, the plaintiff had access to legal advice during 2015 in the form of a solicitor and barrister who were both very experienced with the law, he was able to commence legal proceedings in Queensland, and he was aware of the limitation period at all relevant times.

44. Mr Rollinson submits that it was not reasonable to commence proceedings against the correct defendant where the plaintiff’s legal advisers were “misled by their internet searches” into thinking that these organisations were Nationwide News Pty Ltd or News Corp Australia, as named in the original statement of claim in that both these organisations are within the News Limited or “News Corp” media group. He draws to my attention that this group, by its in-house solicitors, had conducted the defence of the action by both the original and new defendants. The plaintiff’s sole problem is that in the original statement of claim he named the wrong publishing entities.

45. Section 56A(2) Limitation Act 1969 (NSW) requires a consideration of all the circumstances surrounding the commencement of the action out of time, as Mr Rollinson noted in his written submissions at paragraph 10. He submits that the plaintiff’s situation, knowledge and state of mind shows the plaintiff conducted himself reasonably throughout, where a mistake was made by his legal advisers at a very late stage of the proceedings with the unfortunate effect of the limitation period expiring. That mistake is not the plaintiff’s and in those circumstances it should not mean, in the light of all the circumstances, that he should be penalised.

The relevant principles to apply

46. The test posed by s 56A Limitation Act 1969 (NSW), rather than being wholly objective, invites inquiry into an applicant’s reasons for not commencing proceedings within the limitation period. The application of this test involves an evaluative process, the outcome of which depends upon the facts of a particular case: Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90 at [57], [61], [95] and [98].

47. The principles of law are helpfully summarised by O’Neill DCJ in Van Garderen v Channel Seven Melbourne Pty Ltd. His Honour observed at [64]-[65]:

“64 As has been said in many of the authorities, the task facing an applicant seeking an extension of time is a difficult one. The wording of s 23B of the Act makes it clear that it is not a question whether the steps taken by a plaintiff, whether in pursuit of non-litigious resolution of the issues, or in respect of his or her conduct generally, were reasonable, but rather that it was not reasonable to have issued the proceeding within the twelve month time period after publication.

65 In various legislation in this state, most notably the Civil Procedure Act 2010, there is a positive obligation on parties, their solicitors, and even insurers, to take steps to resolve or determine matters in dispute. Practitioners are encouraged, because of the vast cost of litigation and the limited judicial resources available, to make every effort to resolve a proceeding at a stage when they have available a sufficient understanding of the facts of the case to make an assessment of all of the litigious risks. Resolution of proceedings through mediation has become an essential element of the litigious process.”

48. A litigant who postpones commencement of an action acts at his or her own peril, as later supervening unexpected events will not be sufficient where the time for commencing proceedings has expired: Pingel v Toowoomba Newspapers Pty Ltd at [52], cited in Van Garderen v Channel Seven Melbourne Pty Ltd at [40].

49. The plaintiff in the present case has none of the extenuating circumstances set out in Pingel v Toowoomba Newspapers Pty Ltd. Ms Mullins points out that there was no concerns notice or attempts to resolve this matter before proceedings commenced. Nor were there the kind of personal difficulties identified by O’Neill DCJ in Van Garderen v Channel Seven Melbourne Pty Ltd (see [66] of his Honour’s judgment).

50. The real difficulty is what to make of the error by the plaintiff’s legal advisers, which led to the proceedings being commenced against the wrong defendants. The approach taken in defamation proceedings concerning delay by a legal practitioner is very different to that taken in personal injury, as was noted in Van Garderen v Channel Seven Melbourne Pty Ltd at [85] – [89]:

“[85] There is a further matter to be considered. That is, whether the sins of the solicitor (or counsel) ought to be visited upon the plaintiff. In applications for extension of time in respect of personal injury proceedings it is often said that if a plaintiff promptly consults a solicitor and does everything reasonable to provide instructions and prosecute a proceeding, otherwise leaving the conduct in the hands of his or her lawyers, the failure of those lawyers ought not lead to a refusal to extend time unless specific or general prejudice to the defendant can be shown. The availability of a cause of action against the solicitor is a relevant matter to take into consideration. I was not taken to, nor have been able to find authority on point in respect of an extension of time in defamation proceeding.

[86] Although the affidavit material does not critically examine the point, it would appear Dr van Garderen had done everything reasonable in the prosecution of the proceeding. She sought advice promptly and provided instructions from time to time as were needed. She gave instruction finally to issue. That aside, she left the conduct of the proceeding in the hands of her solicitor and counsel. There is nothing in the affidavit of Ms MacRae to suggest that there was any particular difficulty in obtaining instructions, although given the nature of the application, evidence to that effect would not be expected.

[87] In Pingel, Fraser JA said that the considerable delays on the part of the plaintiff’s solicitor and counsel “for present purposes” must be attributed to the respondent. In that case, the Court refused to extend the time in circumstances where the delay in bringing proceedings largely was attributed to the failures of the plaintiff’s solicitors and counsel.

[88] The Act provides a drastically short limitation period within which a defamation proceeding may be brought. The rationale for such a period is that the repair to reputation caused by a defamation should be acted upon promptly. Further, while the legislation provides, even encourages parties to undertake negotiations, nonetheless the test to obtain an extension of the limitation period is a harsh one and difficult for a litigant to overcome. All of those matters point to different policies underlying the limitation legislation as applied to defamation proceedings. In personal injuries litigation, it may be just and reasonable to grant an extension of time when a litigant has done no more than place him or herself in the hands of a solicitor who has neglectfully failed to issue within a limitation period. That concept does not exist in applications for extension in defamation proceedings.

[89] Absent any supporting authority, and given the authorities to which I have referred, the delays which may be directed to Ms MacRae and Mr Maher ought be attributed to Dr van Garderen.”

51. However, in Van Garderen v Channel Seven Melbourne Pty Ltd, the statement of claim was not filed until after the limitation period expired. In the present case, the statement of claim was filed before the limitation period expired, but sued the wrong defendant. Is there a difference?

52. In personal injury proceedings where a wrong party has been joined, decisions such as those referred to above make it clear that commencement of proceedings against the wrong defendant (unless there is a mistake as to the name of the kind protected under s 64 or s 65 Civil Procedure Act 2005 (NSW), which the parties agree is not the case here), meant that the limitation period had expired. This is the case even where proceedings have been legitimately commenced against another party within time: Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676.

53. The plaintiff was able to commence proceedings for defamation in relation to A Current Affair in July 2016. This was not an excuse for inaction in relation to these newspaper and online publications; to the contrary, it was a demonstration of the need for speed in commencing proceedings prior to the expiry of the limitation period about which the plaintiff had been aware from the first.

54. While the period of time during which the plaintiff says he had knowledge of the Courier-Mail article was short (namely about the same time as that for the A Current Affair broadcast), he had plenty of time to commence proceedings (for an estimate of the kind of time this might take, see Barrett v TCN Channel Nine Pty Ltd [2016] NSWSC 1663 at [62]).

55. As for the Gold Coast Bulletin, I am satisfied that not only did the plaintiff know about this publication in November 2015, but that his legal representatives must have seen it in June 2016 because of its role in the Queensland District Court injunction application and the repeated references to it in the Daily Mail article.

56. In relation to both causes of action, I consider that the “sins of the solicitor” should be sheeted home to the plaintiff. He was no neophyte in terms of understanding in relation to court proceedings, he was aware of the limitation period’s imminent expiry and his own dilatoriness, particularly in relation to the Gold Coast Bulletin, was the principal reason for delay until right at the end of the limitation period.

Concluding remarks

57. For the reasons set out above, I am satisfied, on the facts in this case, the plaintiff cannot establish that it was not reasonable in the circumstances for him to have commenced an action in relation to the matters complained of within one year of the date of publication.

58. The next question is what orders should be made in relation to the claim in its current form.

59. As other judges have noted in similar applications (Brooks v Fairfax Media Publications Pty Ltd [2015] NSWSC 986), striking out the print publications does not end these proceedings, in that online version of the matters complained of are, by reason of the asserted absence of the “single publication rule”, still actionable for the 12-month period prior to the statement of claim. In that respect, this application has been, to a degree, somewhat artificial in nature. All the plaintiff needs to do to comply with my orders is to excise the publications which fall outside the limitation period, by filing an amended statement of claim, and I have framed my orders accordingly. That statement of claim must, however, contain full particulars of downloads during the relevant period, as claims for publication on the Internet are not complete unless those particulars are downloaded. Those particulars should include not only the date and place of the downloading but the names and addresses of the persons who downloaded the material, for reasons analogous to those explained in Lazarus v Deutsche Lufthansa (1985) 1 NSWLR 188 at 192, namely that there can be no cause of action unless the online publication was provided.

57. The artificiality, in terms of result, of this application underlines an ongoing problem in defamation law in relation to electronic publications. The rationale for treating publication on the Internet (or, for that matter, emails) as being different from, for example, the lending library from which the Duke of Brunswick’s servant famously borrowed a book (Duke of Brunswick v Harmer (1849) 14 QB 185; [1849] Eng R 915; (1849) 117 ER 75) has not been the subject of judicial examination since the High Court’s obiter statement in Dow Jones & Co Inc v Gutnik (2002) 210 CLR 575 that the multiple publication rule applies equally to online publications as well as to print. The full impact of the Internet was not foreseen even by the expert evidence provided to the Court in those proceedings; the Court (declining (at [30] – [31]) to consider Firth v State of New York (2002) 98 NY 2d 365; (2002) 775 NE 2d 463) concluded it was largely the same as television (at [39] in the joint judgment and at [125] per Kirby J) or newspaper publications (at [181] per Callinan J).

58. The Australian interpretation of online publications as subject to the multiple publication rule produces results which appear to conflict with the strict test for extension of the limitation period for other defamatory publications to which the multiple publication rule applies as well as to other tort limitation reforms, the stated objects of the uniform legislation as well as damages principles (see D K Rolph, “A critique of the national uniform defamation laws” (2008) 16 TLJ 207 at 4, n.155 and 14), and possibly s 23 Defamation Act 2005 (NSW) (Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90).

59. Whether the current interpretation of online publication is correct, whether (as has occurred in Google Inc v Trkulja [2016] VSCA 333) previous judgments have misunderstood the nature of the Internet and/or whether a single publication rule can be inferred from the limitation provisions in the current limitation legislation are questions which do not concern me in this application, although the ongoing failure of the uniform legislation to address electronic publication, despite Kirby J’s warning of this necessity in Dow Jones & Co Inc v Gutnik, must be a matter of concern (Stephanie Rigg, “The Duke and his manservant in a world of online defamation” (2016) 21 MALR 424).

60. Returning to the issues in this case, the only orders I propose to make are to dismiss the plaintiff’s notice of motion with costs, and to require the plaintiff to file a Further Amended Statement of Claim in 14 days, which must contain full particulars of downloading. The amended pleading is agreed by the parties to be the subject of an imputations argument on 8 June 2017.

Orders

1. Plaintiff’s notice of motion dismissed; application for extension of time in relation to publications prior to 9 December 2016 refused.

2. Plaintiff pay defendants’ costs of and incidental to the application, including (where applicable) the costs of the publications for which the extension of time has been refused.

3. Plaintiff file a Further Amended Statement of Claim in 14 days.

4. Matter stood over to Thursday 22 June 2017 for an imputations argument in the Defamation List.

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