FEDERAL COURT OF AUSTRALIA
Owen v KMPG Pty Ltd [2023] FCA 1508
ORDERS
WAD 219 of 2023 BETWEEN: KYLIE OWEN
First Applicant
MORGAN OWEN
Second Applicant
AND: KMPG PTY LTD
First Respondent
KEREN BRIERS
Second Respondent
ORDER MADE BY:
SNADEN J
DATE OF ORDER:
4 DECEMBER 2023
THE COURT ORDERS THAT:
1.The applicant have leave to appeal from the judgment of the court in KMPG Pty Ltd v Owen [2023] FCA 987.
2.Any notice of appeal filed pursuant to the leave granted by order 1 be filed within 28 days of these orders.
Note: Entry of orders is dealt with in Rule 39.32…
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Details
- AGLC
- Owen v KMPG Pty Ltd [2023] FCA 1508
- Case
- [2023] FCA 1508
- Decision Date
CaseChat Overview and Summary
The case before the court involved an application for leave to appeal from interlocutory orders made in a defamation case. The respondents, KMPG Pty Ltd and Ms Briers, sought an extension of the limitation period to commence their defamation proceedings, which the primary judge had granted under section 40(2) of the Limitation Act 2005 (WA). The Owens, who had posted allegedly defamatory reviews online, opposed the respondents’ application for leave to appeal. The central legal issue was whether the primary decision was attended by doubt sufficient to warrant review by a full court. Additionally, the court considered whether section 40(2) of the Limitation Act contemplates the exercise of judicial discretion.
The court found that the primary decision was indeed attended by sufficient doubt to warrant review by a full court. The judges concluded that the primary decision involved a significant question of law, particularly regarding the interpretation and application of section 40(2) of the Limitation Act. The court held that the primary judge’s interpretation of the statutory provision was open to serious question, and the matter warranted further consideration. Moreover, the court emphasised the importance of ensuring that potential substantial injustice is avoided, particularly in cases involving the exercise of judicial discretion. As a result, the court granted the application for leave to appeal.
The court’s decision to grant leave to appeal was based on the need for a full court to address the significant questions of law involved and the potential for substantial injustice. The judges concluded that the primary decision was indeed attended by doubt sufficient to warrant review, and the matter was of sufficient importance to merit further consideration by a full bench. The final orders of the court granted the applicants leave to appeal from the interlocutory orders and set a deadline for filing the notice of appeal within 28 days of the orders.
The court found that the primary decision was indeed attended by sufficient doubt to warrant review by a full court. The judges concluded that the primary decision involved a significant question of law, particularly regarding the interpretation and application of section 40(2) of the Limitation Act. The court held that the primary judge’s interpretation of the statutory provision was open to serious question, and the matter warranted further consideration. Moreover, the court emphasised the importance of ensuring that potential substantial injustice is avoided, particularly in cases involving the exercise of judicial discretion. As a result, the court granted the application for leave to appeal.
The court’s decision to grant leave to appeal was based on the need for a full court to address the significant questions of law involved and the potential for substantial injustice. The judges concluded that the primary decision was indeed attended by doubt sufficient to warrant review, and the matter was of sufficient importance to merit further consideration by a full bench. The final orders of the court granted the applicants leave to appeal from the interlocutory orders and set a deadline for filing the notice of appeal within 28 days of the orders.
Orders
Orders of the court
1. The applicant have leave to appeal from the judgment of the court in KMPG Pty Ltd v Owen [2023] FCA 987.
2. Any notice of appeal filed pursuant to the leave granted by order 1 be filed within 28 days of these orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
That interlocutory application substantially succeeded: KMPG Pty Ltd v Owen [2023] FCA 987 (Colvin J; hereafter, the “Primary Judgment”). The learned primary judge granted relief under s 40(2) of the Limitation Act, extending—in ways that needn’t now be particularised—the limitation period otherwise applicable to the respondents’ substantive defamation action. The Owens now move for leave to appeal from that judgment. For the reasons that follow, that application should succeed.BACKGROUND As has been noted, the substantive proceeding focuses upon some reviews that the Owens are said to have posted on an internet site in November 2020 and January 2021 (to which I shall refer, hereafter, as the “Impugned Posts”). It is unnecessary to particularise their content. It is common ground that the imputations that they conveyed were relevantly published on each occasion that they were accessed by visitors to the website on which they were posted. Each such publication is (or will be) said to constitute separate tortious conduct in respect of which the respondents press for relief. Insofar as those publications occurred on or prior to 2 August 2021—being the date one year before the substantive proceeding was commenced—the respondents require the extension that was the subject of the Primary Judgment. It is a matter of some significance that each of the posts made in November 2020 is alleged to have remained accessible (and, presumably, to have been periodically accessed) until February 2022. The single post that was made in January 2021 is alleged to remain accessible still. It is convenient at this juncture to note the relevant statutory provisions. Section 15 of the Limitation Act provides that an action that relates to the publication of defamatory matter (including one brought pursuant to this court’s accrued jurisdiction) “…cannot be commenced if one year has elapsed since the publication”. That limitation is subject to s 40, which relevantly provides as follows:40. Court may extend time to commence defamation actions (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 3 years have elapsed since the publication. The first respondent, KMPG Pty Ltd (“KMPG”) operates a real estate agency business based in Kalgoorlie, Western Australia. The second respondent, Ms Briers, is one of its two directors. The other is Mr Evan Campbell, Ms Briers’s de facto partner. Ms Briers is (or, at material times, was) a licenced real estate agent and is described as having been the owner and principal of the business. In 2019, Ms Briers was diagnosed with thyroid cancer and has since undergone a series of surgical treatments, at least some of which bear upon the present application.
Ratio Decidendi
Legal Principle Established
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