Sun v Hojunara International Group

[2013] NSWSC 892

Supreme Court

New South Wales

Medium Neutral Citation:

Sun v Hojunara International Group [2013] NSWSC 892

Hearing dates:

1/7/13

Decision date:

01 July 2013

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) The application for an extension of time is adjourned for directions before me at 10am on Friday, 5 July 2013.

(2) I grant leave to the plaintiffs to move on an application for substituted service which may be filed in Court on that day and made returnable instanter.

(3) I excuse any representation, on behalf of Mr Kim, on that day.

(4) I will adjourn the hearing of the plaintiff's application for an extension of time to Friday, 26 July 2013 at 10am before me.

(5) I reserve all questions of costs of today for determination on 26 July 2013.

Catchwords:

LIMITATION OF ACTIONS - application for extension of time to bring proceedings under s 56A Limitation Act 1969 (NSW)
PRACTICE AND PROCEDURE - application for adjournment - application for substituted service

Legislation Cited:

Limitation Act 1969 (NSW)

Cases Cited:

Urbanchich v Drummoyne Municipal Council (1988) A Def R 50-035; (1991) Aust Torts Reports 81-127
Yu v Speirs [2001] NSWCA 373

Category:

Interlocutory applications

Parties:

Wan-Jen Sun (first plaintiff)
Yueh-Chiu Sunpan (second plaintiff)
Hojunara International Group Pty Ltd (defendant)
Duk in Kim (proposed second defendant)
Dave Jeon (proposed third defendant)

Representation:

Counsel:
M. Seck (plaintiffs/applicants)
B. Pierce (proposed second defendant/respondent)
Solicitors:
Goodwyn Legal (plaintiffs/applicants)
CSY Legal (proposed second defendant/respondent)

File Number(s):

2011/405938

EX TEMPORE Judgment

1. HIS HONOUR: The current application is an application for an extension of time to bring proceedings in defamation under section 56A of the Limitation Act 1969 (NSW).

1. The proposed additional defendants are persons said to be the moderators of a website conducted by the named defendant, a corporation.

1. The plaintiffs claim damages for defamation in respect of matters which were posted on the website between August 2010 and May 2013. Mr Seck of counsel, who appears for the plaintiffs, has drawn to my attention the decision of Urbanchich v Drummoyne Municipal Council (1988) A Def R 50-035; (1991) Aust Torts Reports 81-127 in which he says Hunt J, as his Honour then was, decided that, by parity of reasoning, in the case of online publications, publication relevantly is not taken to have occurred until the expiration of a reasonable time after a request has been made by or on behalf of the plaintiff for the removal of the material from the website. If this is so, then the date of publication, for the purpose of s 56A(2) would have, I apprehend, the same meaning.

1. On that view, there may be no urgency for the Court to deal with the matter. However, I would have been prepared to deal with the matter today except for two things.

1. The first is that Mr Pierce of counsel, who appears for the proposed second defendant, a Mr Kim, has requested an adjournment. In support of his application he has read an affidavit of his client who, in strong terms, denies that he was ever in the position of a moderator of the website. Mr Kim admits some involvement with the corporate defendant but swears that he resigned his directorship on 3 August 2011 and that he had no active involvement in the affairs of the company at any time. I note in passing that the date of the resignation (3 August 2011) postdates the last dates of publication relied upon by the plaintiff.

1. Without making any judgment whatsoever in relation to Mr Kim's evidence - it would be inappropriate to do so at this interlocutory stage - the plaintiff relies upon the verified statement in answer to interrogatories filed on behalf of the corporate defendant when it was represented, in which it was said at paragraph 3(b) that Mr Kim was a person who held a position in relation to website management on behalf of the defendant. Interestingly, that statement was verified by Mr Dave Jeon, the individual whom the plaintiffs wish to proceed against as the third defendant.

1. I would have been disposed to refuse Mr Pierce's application for an adjournment. It seems to me, applying the test that the Court of Appeal expressed in Yu v Speirs [2001] NSWCA 373 in relation to applications for an extension of time, that there is sufficient material before me, having regard to the statement in answer to interrogatories, from which I could infer that there is likely to be evidence available to the plaintiff at any trial of this matter which, if accepted, would be capable of supporting an inference that Mr Kim has some relevant involvement in the publication of the matters complained of.

1. I indicated this to Mr Pierce in the course of argument. Although the question must be answered against each defendant individually, it seemed to me that the matter should be dealt with all at the one time and it was unlikely that any adjournment would assist Mr Kim because of the near impossibility of satisfying a Court, at this interlocutory stage, that the plaintiff's case against him was untenable.

1. However, events rather overtook that discussion because Mr Seck has informed me that the plaintiff has been unable to effect service on Mr Jeon. Mr Seck, with leave, filed in Court an affidavit of a process server, a Mr Adam McGuire, who has attempted to serve Mr Jeon.

1. The plaintiff sought an order for substituted service, even though no motion had been filed. I would have been favourably disposed to dealing with the matter today, in the interests of expedition, except no attempt has been made to serve Mr Jeon at the address he gave as his address in March of this year when he affirmed the affidavit verifying the interrogatories. On this basis, I could not be satisfied that proper attempts have been made to serve Mr Jeon, laying a foundation for an application for substituted service.

1. As it seems to me that the application, so far as it concerns Mr Jeon, needs to be adjourned, by way of, I suppose, a forensic windfall, despite my reluctance to grant it, I think it proper to grant Mr Pierce's application to adjourn the hearing of the application for an extension of time to sue Mr Kim as well, with a view to both matters being heard at the same time.

1. To enable the plaintiffs to attempt further service on Mr Jeon and to make an application for substituted service, if necessary, with all due promptitude, I make the following orders:

(1)   The application for an extension of time is adjourned for directions before me at 10am on Friday, 5 July 2013.

(2)   I grant leave to the plaintiffs to move on an application for substituted service which may be filed in Court on that day and made returnable instanter.

(3)   I excuse any representation, on behalf of Mr Kim, on that day.

(4)   I will adjourn the hearing of the plaintiff's application for an extension of time to Friday, 26 July 2013 at 10am before me.

(5)   I reserve all questions of costs of today for determination on 26 July 2013.

**********

Decision last updated: 10 July 2013