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

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).

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

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.

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.

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…

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 Sun v Hojunara International Group

Details

AGLC: Sun v Hojunara International Group [2013] NSWSC 892
Case: [2013] NSWSC 892
Decision Date: 01 July 2013

CaseChat Overview and Summary

The plaintiffs, Sun, filed an application for an extension of time to bring proceedings under section 56A of the Limitation Act 1969 (NSW) against the defendant, Hojunara International Group. The application was made in the Federal Circuit and Family Court of Australia. The dispute centred around a contract and the plaintiffs' claim that they were unable to bring their proceedings within the normal limitation period due to being misled by the defendant.

The primary legal issues that the court needed to decide were whether the plaintiffs' application for an extension of time should be granted under section 56A of the Limitation Act 1969 (NSW) and whether an adjournment should be granted to allow for substituted service of the originating application. The court was also required to determine whether the plaintiffs had acted with due diligence in pursuing their claim.

The court considered the plaintiffs' application for an extension of time and found that the plaintiffs had not acted with due diligence in bringing their claim. The court held that the plaintiffs had not established that they were unable to bring their proceedings within the normal limitation period due to being misled by the defendant. The court also found that the plaintiffs had not provided sufficient evidence to support their application for substituted service. As a result, the court dismissed the plaintiffs' application for an extension of time and adjourned the proceeding to allow the plaintiffs to effect service of the originating application on the defendant.

Orders