Wan-Jen Sun v Hojunara International Group Pty Ltd

[2013] NSWSC 2044

Supreme Court

New South Wales

Medium Neutral Citation:

Wan-Jen Sun v Hojunara International Group Pty Ltd [2013] NSWSC 2044

Hearing dates:

22 August 2013

Decision date:

22 August 2013

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

1. Pursuant to the Civil Procedure Act 2005 and Uniform Civil Procedure Rules 2005, the Court makes an order that the orders issued by His Honour Justice Campbell on 26 July 2013 in this matter namely, Sun v Hojunara International Group Pty Ltd (2011/405938), be varied nunc pro tunc so that the date 5 August 2013 shall now read 9 August 2013;

2. As a matter of abundant caution, the Court also makes an order under s 58 of the Limitation Act 1969 and extends the limitation period mentioned in s 14B of that Act to 9 August 2013;

3. The plaintiffs' shall pay the defendants' costs of this motion as agreed or assessed.

Catchwords:

LIMITATION OF ACTIONS - defamation proceedings - limitation period for a corporation - joinder application - two directors of company

Legislation Cited:

Limitation Act 1969 (NSW)
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Cassar v Network Ten Pty Ltd [2012] NSWSC 680
Sun v Hojunara International Group (No 2) [2013] NSWSC 1050

Category:

Interlocutory applications

Parties:

Wan-Jen Sun (First Plaintiff)
Yueh-Chiu Sunpan (Second Plaintiff)
Hojunara International Group Pty Ltd (First Defendant)
Duk In Kim (Second Defendant)
Dave Jeon (Third Defendant)

Representation:

Counsel:
M. Seck (First and Second Plaintiff)
B. Pierce (First Defendant)
Self-represented (Second Defendant)
No appearance (Third Defendant)
Solicitors:

File Number(s):

2011/405938

Publication restriction:

None

EX TEMPORE Judgment

1. HIS HONOUR: Before the Court is an unusual application in the sense it arises as a matter of form rather than substance.

1. On 26 July 2013, Campbell J dealt with a motion to extend the limitation period in relation to the commencement of defamation proceedings against two individuals who are directors of a company that has, since the commencement of the original proceedings, gone into liquidation. Whether the liquidation occurred before or after the commencement of the proceedings is, for present purposes, unimportant. The fact is there were proceedings on foot against a corporation, the directors of which were the two individuals, who were sought to be joined. That joinder would have occurred after the date fixed by s 14B of the Limitation Act 1969 (NSW).

1. In defamation proceedings, the period fixed for the filing of proceedings is within one year from the date of the publication. Because of issues associated with publication on the Internet, which is the case in these proceedings, the date of publication can be a moving feast. Nevertheless, unarguably the joinder of the two directors, who, it is alleged, were moderators of a blog site and aware of the contents thereof, would have occurred at a time that was not within one year from the date of publication however that was measured.

1. Section 56A of the Limitation Act provides that an extension of time may be granted up to three years. The authorities are relatively clear. They were summarised by Camobell J in an ex tempore judgment delivered on 26 July 2013, and in particular reference was made to the summary of Hislop J in Cassar v Network Ten Pty Ltd [2012] NSWSC 680. I do not repeat that summary; it is contained in paragraph 9 of the reasons for judgment of Campbell J, which were reasons for judgment in these proceedings: see Sun v Hojunara International Group (No 2) [2013] NSWSC 1050.

1. Essentially, the conclusion his Honour reached was that it was appropriate, pursuant to the powers and/or discretion vested in the Court under s 56A of the Limitation Act, to extend the limitation period mentioned in s 14B of that Act to 5 August 2013. The second order his Honour made was to grant leave to the plaintiffs to file a statement of claim naming the two individuals as defendants, and there were consequential orders.

1. The reasons for judgment make clear his Honour turned his mind to the question as to whether there should be an amendment to the existing statement of claim or the filing of a new statement of claim. Counsel for the plaintiffs did not attend at the delivery of the reasons, as distinct from the hearing, and the notes that were taken by his instructor were such that there was some confusion as to whether the matter required the filing of a third further amended statement of claim or the filing of fresh proceedings.

1. On 2 August 2013, namely three days earlier than the time limit set by his Honour, the plaintiffs filed a third further amended statement of claim. When counsel read the then published reasons for judgment, which were, it seems, last updated on 6 August 2013, counsel realised that his Honour required the filing of a fresh statement of claim rather than an amended statement of claim in the existing proceedings, as a consequence of which, on 9 August 2013, the plaintiff purported to file a fresh statement of claim naming the two individuals as defendants.

1. The matter has been approached before the Court, at least initially, on the basis that the discretion being exercised by the Court was a discretion under the Limitation Act.

1. It is unnecessary ultimately to determine that, but it seems to me that is not what the Court is required to do. The exercise of discretion on which the Court is required to adjudicate is the question as to whether this Court, in effect, ought take form over substance.

1. The fact of the matter is that the plaintiffs have, in accordance with the time limit fixed by his Honour, given the individuals formal notice of their claim and the requirement on the defendants to defend proceedings for defamation. They have done so by way of an amended statement of claim instead of by separate proceedings.

1. It seems to me the exercise of discretion is, in truth, one in which I am called upon to vary the orders made by his Honour to allow the filing of the statement of claim by 9 August 2013, his Honour having found that, in relation to the limitation period, discretion was appropriately exercised or appropriate to exercise. In those circumstances, the exercise of discretion, and, I would have thought, even in relation to s 14B and s 56A of the Limitation Act, the exercise of discretion is governed by the principles that underpin the provisions of ss 56, 57 and 58 of the Civil Procedure Act 2005 and the court is required to facilitate the just, quick and cheap resolution of the real issues between the parties. The real issues, of course, are those defined by the pleadings, and case management is an important aspect.

1. In the case of defamation proceedings, it is, as the Limitation Act makes clear, important that a defendant who has purportedly published material knows relatively quickly that that publication has been impugned and damages are sought for the content of that publication. In this case, the directors presumably would have been aware of the criticism of the publication at a much earlier stage because of the commencement of proceedings against the corporation. His Honour found it was not unreasonable to commence against the two individuals, and extended the time to 5 August. It seems, in the circumstances, and given the obvious mistake and filing and service of an amended statement of claim as distinct from a fresh proceeding, it is appropriate simply to extend the orders or the date contained in the orders of his Honour Campbell J without embarking upon any consideration of the s 14B matters to which his Honour referred.

Order

1. In those circumstances, pursuant to the Civil Procedure Act and the Uniform Civil Procedure Rules, the Court makes the following orders:

(1)   The orders issued by his Honour Campbell J in this matter, namely Sun v Hojunara International Group, be varied nunc pro tunc so that the date 5 August 2013 shall now read 9 August 2013;

(2) As a matter of abundant caution, I make an order under s 56A of the Limitation Act 1969 and extend the limitation period mentioned in s 14B of that Act to 9 August 2013;

(3)   The plaintiffs' shall pay the defendants' costs of this motion, as agreed or assessed.

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Decision last updated: 03 September 2014