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Teh v Woodworth

Teh v Woodworth

Case [2022] NSWDC 411 15 September 2022

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District Court

New South Wales

Medium Neutral Citation: Teh v Woodworth & Anor [2022] NSWDC 411
Hearing dates: 9 September 2022
Date of orders: 15 September 2022
Decision date: 15 September 2022
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Orders:
(1)   Plaintiff’s application for an extension of time to commence proceedings in relation to the publications dated 17 August 2019 and 20 February 2020 refused.
(2) Plaintiff’s claim for defamation for other publications for the period 21 July 2021 onwards (including the publication alleged to have been made on 16 June 2022) struck out by reason of failure to comply with ss 10A, 12A and 12B of the Defamation Act 2005 (NSW).
(3)   Plaintiff’s claim for slander struck out as an abuse of process.
(4)   Proceedings struck out and dismissed.
(5)   Plaintiff pay defendants’ costs.

Catchwords:
TORT - defamation - application for extension of limitation period for plaintiff to commence action in defamation pursuant to ss 14B and 56A of the Limitation Act 1969 (NSW) - two publications in 2019 and 2020 opposing a development application by a neighbour - matters complained of had been in the plaintiff’s possession since May 2020 - whether not reasonable in the circumstances for the plaintiff to have commenced action in defamation within one year of publication - where names of the plaintiffs were redacted by Council - where plaintiff asserted there was a further publication by Council of the matters in 2022 - whether the whole of the proceedings should be struck out or an asserted 2022 publication permitted - whether concerns notice invalid for failure to refer to 2022 publication or provide particulars of serious harm - application for extension refused - proceedings struck out and dismissed

Legislation Cited:
Defamation Act 2005 (NSW) s 7, 10A, 12A and 12B
Limitation Act 1969 (NSW) ss 14, 56A and 56D

Cases Cited:
Barilaro v Shanks-Marcovina (No 3) [2021] FCA 1100
Cassar v Network Ten Pty Ltd [2012] NSWSC 680
Clayton v Heffron (1960) 105 CLR 214
Daryanani v Ramnani [2017] EWHC 183
David v Gabriel [2016] EWHC 2799 (QB)
Do v Kolsumdet Pty Ltd [2022] FCA 1057
Duraisamy v Sydney Trains [2019] NSWCA 269
Emmerton v University of Sydney [1970] 2 NSWR 633
Hunter Resources Ltd v Melville (1988) 164 CLR 234
Joukhador v Network Ten Pty Ltd [2021] FCAFC 37
Lachaux v Independent Print Ltd and another [2020] AC 612
M1 v R1 & Ors [2022] NSWDC 409
Maple v David Syme & Co (1974) 1 NSWLR 290
Newcombe v O’Connor & O’Connor [2022] QDC 19
Newman v Whittington [2022] NSWSC 249
Raghubir v Nicolopoulos [2021] FCA 1073
Raghubir v Nicolopoulos [2022] FCAFC 97
Raghubir v Nicolopoulos [2022] NSWSC 386
Red Packet Investments Pty Ltd v Blue Mountains City Council [2021] NSWLEC 1126
Ruta v Department of Work and Pensions [2022] EWHC 1535
Sarina v O’Shannassy [2019] NSWDC 246
Soriano v Société d'Exploitation de L'Hebdomadaire Le Point SA & Anor [2022] EWHC 1763
Tewari v Khetarpal & Ors [2022] EWHC 2066

Category: Principal judgment

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 Teh v Woodworth

Details

AGLC: Teh v Woodworth [2022] NSWDC 411
Case: [2022] NSWDC 411
Decision Date: 15 September 2022

CaseChat Overview and Summary

The matter of Teh v Woodworth involved a defamation claim brought against the defendants, who had opposed a development application by a neighbour. The plaintiff sought an extension of time to commence proceedings under sections 14B and 56A of the Limitation Act 1969 (NSW) for two publications made in 2019 and 2020. The plaintiff's names were redacted by the Council, and they claimed a further publication by the Council in 2022. The primary issue before the court was whether it was not reasonable in the circumstances for the plaintiff to have commenced action within one year of publication, and whether the proceedings should be struck out or an asserted 2022 publication permitted. Additionally, the court needed to determine if the concerns notice was invalid due to the failure to refer to the 2022 publication or provide particulars of serious harm.

The court found that the plaintiff was not prevented from bringing the action within the limitation period due to the redaction of their names and rejected the argument that the plaintiff was unaware of the defamatory matter until June 2022. The court held that the plaintiff's claims for defamation for other publications from 21 July 2021 onwards were struck out due to failure to comply with sections 10A, 12A, and 12B of the Defamation Act 2005 (NSW). The claim for slander was also dismissed as an abuse of process. The court concluded that the concerns notice was invalid because it did not refer to the 2022 publication or provide particulars of serious harm. The plaintiff's application for an extension of time to commence proceedings was refused, and the proceedings were struck out and dismissed.

The court ordered that the plaintiff's application for an extension of time to commence proceedings in relation to the publications dated 17 August 2019 and 20 February 2020 was refused. The plaintiff's claim for defamation for other publications for the period 21 July 2021 onwards, including the publication alleged to have been made on 16 June 2022, was struck out by reason of failure to comply with sections 10A, 12A, and 12B of the Defamation Act 2005 (NSW). The plaintiff's claim for slander was struck out as an abuse of process. The proceedings were struck out and dismissed, and the plaintiff was ordered to pay the defendants' costs.

Orders

Orders of the court

Orders:

(1) Plaintiff’s application for an extension of time to commence proceedings in relation to the publications dated 17 August 2019 and 20 February 2020 refused.

(2) Plaintiff’s claim for defamation for other publications for the period 21 July 2021 onwards (including the publication alleged to have been made on 16 June 2022) struck out by reason of failure to comply with ss 10A, 12A and 12B of the Defamation Act 2005 (NSW).

(3) Plaintiff’s claim for slander struck out as an abuse of process.

(4) Proceedings struck out and dismissed.

(5) Plaintiff pay defendants’ costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Teh v Woodworth [2022] NSWDC 411

Most Recent Citation

TRASENTE, D.J. Developments Pty Limited v McCreight [2024] SADC 149

Cases citing this decision · 11 of 11 shown

Kassar v Kee
[2025] VSC 671 Para 1

…irremediable defect’.[8] Similar sentiments were expressed by Goulden AsJ in Reiter v News Corp Australia Pty Ltd .[9] [7] Teh v Woodworth [2022] NSWDC 411, [27] (Gibson J). [8] Piggott v Van Der Veen [2025] NSWDC 391, [24] (Gibson J). [9][2025] VSC 54 (Goulden AsJ).…
Piggott v Van Der Veen
[2025] NSWDC 391 Para 20

…] – [21], citing Hoser v Herald and Weekly Times Pty Limited & Anor (Ruling) [2022] VCC 2213, [7], [107]; M1 v R1 [2022] NSWDC 409; Teh v Woodworth [2022] NSWDC 411 (‘ Teh ’); Randell v McLachlan [2022] NSWDC 506 and Khan v Hassan (Ruling) [2023] VCC 852. Reiter v News Corp Australia Pty Ltd & Anor was referred to…
Reiter v News Corp Australia Pty Ltd
[2025] VSC 54 Para 1

…and Weekly Times Pty Limited & Anor (Ruling) [2022] VCC 2213, [7], [107] (‘ Hoser ’); M1 v R1 [2022] NSWDC 409 ( ‘M1 v R1 ’); Teh v Woodworth [2022] NSWDC 411 (‘ Teh ’); Randell v McLachlain [2022] NSWDC 506 (‘ Randell ’); Khan v Hassan (Ruling) [2023] VCC 852.…
Kelly v UNSW
[2025] NSWDC 24 Para 29

…A similar issue arose in Teh v Woodworth [2022] NSWDC 411, where the plaintiff brought three causes of action, the first of which was for “numerous vexatious complaints to council” giving rise to slander “since 2013” (at [1.3]). The other two claims had similar limitation issues and in all three cases, the limitati…
TRASENTE, D.J. Developments Pty Limited v McCreight
[2024] SADC 149 Para 7

…not entitled to bring a claim for defamation.[19] [12] [2024] QSC 80, [43]. [13] Randell v McLachlain [2022] NSWDC 506, [15]; Teh v Woodworth & Anor [2022] NSWDC 411, [26]-[27]; Hoser v Herald and Weekly Times Pty Ltd [2022] VCC 2213, [83], [109]-[110]; Georges v Georges [2022] NSWDC 558, [55]. [14] [2024] QSC 80,…
Russell v S3@Raw Pty Ltd (No 3)
[2024] FCA 991 Para 2

…ed to a number of cases which provide that the failure to provide particulars as to serious harm renders the concerns notice invalid; Teh v Woodworth [2022] NSWDC 411 at [30]; Randell v Mclachlain [2022] NSWDC 506 at [13] - [17]. In Randell , Gibson DCJ found that the plaintiff’s concerns notice did not sufficientl…
Staged Plus Pty Ltd v Yummi Fruit Ice-Creamery Pty Ltd
[2024] QDC 88 Para 6

…lso expressly particularise facts demonstrating a causal link between the matter complained of and the serious harm in the concerns notice: Teh v W [2022] NSWDC 411.…
Peros v Nationwide News Pty Ltd
[2024] QSC 80 Para 3

…See, for example, Randell v McLachlain [2022] NSWDC 506 at [15], Teh v Woodworth & Anor [2022] NSWDC 411 at [26]-[27]; Hoser v Herald and Weekly Times Pty Ltd (Ruling) [2022] VCC 2213 at [83], [109]-[110]. On one view, commencing proceedings in breach of the provision could amount to an abuse of process: Hoser at […
Cooper v Nine Entertainment Co Pty Ltd
[2023] FCA 726 Para 10

…uthority in support of the respondents’ construction of ss 12, 12A or 12B. In the course of oral argument I mentioned to counsel to Teh v Woodworth [2022] NSWDC 411 ( Teh ), Gibson DCJ; Hoser v Herald and Weekly Times Pty Ltd [2022] VCC 2213 ( Hoser ), Judge Clayton and Newman v Whittington [2022] NSWSC 1725 ( Newm…
Hooper v Catholic Family Services trading as Centacare Catholic Family Services
[2023] FedCFamC2G 323 Para 17

…rovision which does not have such fatal consequences (although generally there should be substantial compliance). [16] Teh v Woodworth & Anor [2022] NSWDC 411 at [26] – [27].…
Georges v Georges
[2022] NSWDC 558 Para 1

…r to the commencement of a suit. [4] This was order 1 made by Levy SC DCJ on 21 July 2022 [5] M1 v R1 [2022] NSWDC 409 at [25]; Teh v Woodworth [2022] NSWDC 411 at [26]…

View all 11 citing cases →

Cases cited in this decision · 26 of 26 shown

M1 v R1
[2022] NSWDC 409 Para 50

…which fails to comply with ss 10A, 12A and 12B where the proceedings in question have been commenced by a litigant in person (see also M1 v R1 & Ors [2022] NSWDC 409).…
Do v Kolsumdet Pty Ltd
[2022] FCA 1057 Para 13

…fficulty in finding out who the defendants were. An application for pre-action discovery of the kind deplored by Bromwich J in Do v Kolsumdet Pty Ltd [2022] FCA 1057 at [10] was therefore never necessary.…
Paule v McKay (No 2)
[2022] ACTSC 190

…e Pty Ltd [2017] NSWCA; 96 NSWLR 478 per McColl JA at [69]-[72] and [103] (Simpson and Payne JJA agreeing); and most recently Paule v McKay (No. 2) [2022] ACTSC 190 per McWilliam AsJ at [17]-[31]. The principles were succinctly summarised in Paule v McKay (No. 2) as follows at [22]: The applicable principles that h…
Raghubir v Nicolopoulos
[2022] FCAFC 97 Para 4

…6 (proceedings commenced in the District Court of NSW and in the Federal Court of Australia for the same publications); Raghubir v Nicolopoulos [2022] FCAFC 97 (proceedings commenced in the Supreme Court of NSW and in the Federal Court of Australia for the same publications).…
Renuka Raghubir v Christine Nicolopoulos
[2022] NSWSC 386 Para 51

…t by litigants in person where the concerns notice procedure set out in ss 12A and 12B has clearly not been complied with. In Raghubir v Nicolopoulos [2022] NSWSC 386, the plaintiffs commenced defamation proceedings without serving a concerns notice at all. At [19], Sackar J identified failure to comply with s 12B…
Newman v Whittington
[2022] NSWSC 249 Para 30

…The obligation to provide clear particulars of serious harm has been explained by Sackar J in Newman v Whittington [2022] NSWSC 249 at [30] - [46], where his Honour struck out particulars of serious harm in a statement of claim while granting leave to amend. No such right to amend is possible here, firstly because…
Newcombe v O'Connor and O'Connor
[2022] QDC 19 Para 3

…on occasions of qualified privilege, and that as a result he had a weak case. A similar submission was advanced in Newcombe v O’Connor & O’Connor [2022] QDC 19, although that submission was based on difficulties in identifying the plaintiff. The plaintiff argues that until the matters complained of were re-relea…
Raghubir v Nicolopoulos
[2021] FCA 1073 Para 51

…ct publications postdating the 1 July 2021 amendments. (These same litigants commenced proceedings in the Federal Court ( Raghubir v Nicolopoulos [2021] FCA 1073) at the same time as the proceedings in the Supreme Court, but the issue of service of a concerns notice was not an issue, as the main question was wheth…
Barilaro v Shanks-Markovina (No 3)
[2021] FCA 1100 Para 23

…l been made before that date (a situation which has drawn some criticism in view of its asserted technicality: see Barilaro v Shanks-Marcovina (No 3) [2021] FCA 1100). Nor is it the case, as the plaintiff appears to claim, that the amendments to the legislation which takes force from 1 July 2021 mean that publicat…
Red Packet Investments Pty Ltd v Blue Mountains City Council
[2021] NSWLEC 1126 Para 2

…application for which the plaintiff was the architect and project manager are set out in Red Packet Investments Pty Ltd v Blue Mountains City Council [2021] NSWLEC 1126.…
Joukhador v Network Ten Pty Limited
[2020] FCA 746

…urisdictions adequately explain what is needed for an application under that provision to succeed: Joukhador v Network Ten Pty Ltd [2021] FCAFC 37; 283 FCR 1 per Rares, Wigney and Bromwich JJ at [49]-[54]; Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA; 96 NSWLR 478 per McColl JA at [69]-[72] and [103] (Sim…
Duraisamy v Sydney Trains
[2019] NSWCA 269 Para 53

…Similar warnings were given by Bell P (as his Honour the Chief Justice then was) in Duraisamy v Sydney Trains [2019] NSWCA 269 at [25], in relation to the conduct of litigation by litigants in person generally.…
Sarina v O'Shannassy
[2019] NSWDC 246 Para 4

…aim for defamation over the same two matters would amount to abuse of process: Maple v David Syme & Co (1974) 1 NSWLR 290; Sarina v O’Shannassy [2019] NSWDC 246 (proceedings commenced in the District Court of NSW and in the Federal Court of Australia for the same publications); Raghubir v Nicolopoulos [2022] FCAFC…
Barrett v TCN Channel Nine Pty Ltd
[2017] NSWCA 304 Para 69

…r v Network Ten Pty Ltd [2021] FCAFC 37; 283 FCR 1 per Rares, Wigney and Bromwich JJ at [49]-[54]; Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA; 96 NSWLR 478 per McColl JA at [69]-[72] and [103] (Simpson and Payne JJA agreeing); and most recently Paule v McKay (No. 2) [2022] ACTSC 190 per McWilliam AsJ at [1…
Cassar v Network Ten Pty Ltd
[2012] NSWSC 680 Para 39

…The principles relevant to applications for an extension of time in defamation proceedings are set out by Hislop J in Cassar v Network Ten Pty Ltd [2012] NSWSC 680 at [16]:…
Carey v Australian Broadcasting Corporation
[2012] NSWCA 176 Para 45

…with the plaintiff - Rayney [41], Ahmed v Harbour Radio Pty Limited [2010] NSWSC 676, Carey v Australian Broadcasting Corporation [2010] NSWSC 709, (2010) 77 NSWLR 136 at [45]; (c) the test is objective - Noonan [20], Carey [48]; (d) it is a difficult hurdle for a plaintiff to overcome unless there are some unusual ci…
Ritson v Gay & Lesbian Community Publishing Ltd & Ors
[2012] NSWSC 483 Para 24

…ed as involving the exercise of a discretion in the sense of involving a normative judgment - Ritson v Gay and Lesbian Community Publishing Limited [2012] NSWSC 483 at [24], [25].”” [Citations omitted]…
Carey v Australian Broadcasting Corporation
[2010] NSWSC 709

…b) the onus rests with the plaintiff - Rayney [41], Ahmed v Harbour Radio Pty Limited [2010] NSWSC 676, Carey v Australian Broadcasting Corporation [2010] NSWSC 709, (2010) 77 NSWLR 136 at [45]; (c) the test is objective - Noonan [20], Carey [48]; (d) it is a difficult hurdle for a plaintiff to overcome unless ther…
Ahmed v Harbour Radio Pty Ltd
[2010] NSWSC 676

…he State of Western Australia (No 3) [2010] WASC 83 at [41]; (b) the onus rests with the plaintiff - Rayney [41], Ahmed v Harbour Radio Pty Limited [2010] NSWSC 676, Carey v Australian Broadcasting Corporation [2010] NSWSC 709, (2010) 77 NSWLR 136 at [45]; (c) the test is objective - Noonan [20], Carey [48]; (d) it…
Rayney v State of Western Australia (No 3)
[2010] WASC 83 Para 41

…hin one year from the date of the publication - Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537, Rayney v The State of Western Australia (No 3) [2010] WASC 83 at [41]; (b) the onus rests with the plaintiff - Rayney [41], Ahmed v Harbour Radio Pty Limited [2010] NSWSC 676, Carey v Australian Broadcasting Corpo…
Noonan v MacLennan
[2010] QCA 50

…plaintiff to have commenced an action in relation to the matter complained of within one year from the date of the publication - Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537, Rayney v The State of Western Australia (No 3) [2010] WASC 83 at [41]; (b) the onus rests with the plaintiff - Rayney [41], Ahmed v…
Hunter Resources Ltd v Melville
[1988] HCA 5 Para 26

…liance: Clayton v Heffron (1960) 105 CLR 214 at 247 per Dixon CJ, McTiernan, Taylor and Windeyer JJ; see also Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 248-250). It is mandatory in nature.…
Clayton v Heffron
[1960] HCA 92 Para 26

…irectory” provision which does not have such fatal consequences (although generally there should be substantial compliance: Clayton v Heffron (1960) 105 CLR 214 at 247 per Dixon CJ, McTiernan, Taylor and Windeyer JJ; see also Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 248-250). It is mandatory in nature.…
[2020] AC 612
[2020] AC 612 Para 31

…for the reasons explained by Sackar J in Newman v Whittington in his Honour’s discussion of the use of Lachaux v Independent Print Ltd and another [2020] AC 612 at [48] - [50], the necessity to go beyond “a bare assertion” of serious harm has been described as being “not a technicality which can be overcome by…
[1989] AC 643
[1989] AC 643 Para 3

…m of defamation (including “slander”) for statements on unknown dates of unknown content is impermissible: Emmerton v University of Sydney [1970] 2 NSWR 633. The claim is also impermissibly rolled up, in that there is no breaking down of the allegations in relation to individual publications. No imputations a…
Joukhador v Network Ten Pty Ltd
[2021] FCAFC 37 Para 41

…As the Full Court of the Federal Court explained in Joukhador v Network Ten Pty Ltd [2021] FCAFC 37, the combined weight of each of the factors identified by the plaintiff as establishing that it was not reasonable for him to have commenced proceedings before he actually did must therefore be taken into account. T…

Legislation cited in this decision · 2

Defamation Act 2005 (TAS)
10A, 12A, 12B, 7 5 mentions (from Para 6)
Limitation Act 1969 (NSW)
14, 56A, 56D 4 mentions

Medium Neutral Citation:	Teh v Woodworth & Anor [2022] NSWDC 411
Hearing dates:	9 September 2022
Date of orders:	15 September 2022
Decision date:	15 September 2022
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Orders: (1) Plaintiff’s application for an extension of time to commence proceedings in relation to the publications dated 17 August 2019 and 20 February 2020 refused. (2) Plaintiff’s claim for defamation for other publications for the period 21 July 2021 onwards (including the publication alleged to have been made on 16 June 2022) struck out by reason of failure to comply with ss 10A, 12A and 12B of the Defamation Act 2005 (NSW). (3) Plaintiff’s claim for slander struck out as an abuse of process. (4) Proceedings struck out and dismissed. (5) Plaintiff pay defendants’ costs.
Catchwords:	TORT - defamation - application for extension of limitation period for plaintiff to commence action in defamation pursuant to ss 14B and 56A of the Limitation Act 1969 (NSW) - two publications in 2019 and 2020 opposing a development application by a neighbour - matters complained of had been in the plaintiff’s possession since May 2020 - whether not reasonable in the circumstances for the plaintiff to have commenced action in defamation within one year of publication - where names of the plaintiffs were redacted by Council - where plaintiff asserted there was a further publication by Council of the matters in 2022 - whether the whole of the proceedings should be struck out or an asserted 2022 publication permitted - whether concerns notice invalid for failure to refer to 2022 publication or provide particulars of serious harm - application for extension refused - proceedings struck out and dismissed
Legislation Cited:	Defamation Act 2005 (NSW) s 7, 10A, 12A and 12B Limitation Act 1969 (NSW) ss 14, 56A and 56D
Cases Cited:	Barilaro v Shanks-Marcovina (No 3) [2021] FCA 1100 Cassar v Network Ten Pty Ltd [2012] NSWSC 680 Clayton v Heffron (1960) 105 CLR 214 Daryanani v Ramnani [2017] EWHC 183 David v Gabriel [2016] EWHC 2799 (QB) Do v Kolsumdet Pty Ltd [2022] FCA 1057 Duraisamy v Sydney Trains [2019] NSWCA 269 Emmerton v University of Sydney [1970] 2 NSWR 633 Hunter Resources Ltd v Melville (1988) 164 CLR 234 Joukhador v Network Ten Pty Ltd [2021] FCAFC 37 Lachaux v Independent Print Ltd and another [2020] AC 612 M1 v R1 & Ors [2022] NSWDC 409 Maple v David Syme & Co (1974) 1 NSWLR 290 Newcombe v O’Connor & O’Connor [2022] QDC 19 Newman v Whittington [2022] NSWSC 249 Raghubir v Nicolopoulos [2021] FCA 1073 Raghubir v Nicolopoulos [2022] FCAFC 97 Raghubir v Nicolopoulos [2022] NSWSC 386 Red Packet Investments Pty Ltd v Blue Mountains City Council [2021] NSWLEC 1126 Ruta v Department of Work and Pensions [2022] EWHC 1535 Sarina v O’Shannassy [2019] NSWDC 246 Soriano v Société d'Exploitation de L'Hebdomadaire Le Point SA & Anor [2022] EWHC 1763 Tewari v Khetarpal & Ors [2022] EWHC 2066
Category:	Principal judgment