(1) The defendant’s application that these proceedings be struck out by reason of having been brought outside the limitation period (s 56A(2) of the Limitation Act 1969 (NSW)) is granted.
(2) These proceedings are struck out and dismissed.
(3) The plaintiff is to pay the defendant’s costs of these proceedings, with liberty to apply on all costs issues including the bringing of an application for costs to be determined by a gross sum costs order.
(4) Exhibits retained until further order.
Catchwords:
TORT – defamation – plaintiff brings two claims for defamation for Facebook posts – the second of those claims is struck out in December 2022 due to defects in the concerns notice procedure – fresh concerns notice for second publication served in March 2023 – defendant’s application for the first claim to be struck out as an abuse of process is successful – plaintiff recommences claim for the second defamation claim in August 2023 – whether extension of time required under the Limitation Act 1969 (NSW) – “just and reasonable” – delay - whether leave to commence required under s 23 of the Defamation Act 2005 (NSW) – whether the plaintiff’s second statement of claim is an abuse of process
[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.
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Details
AGLC
Woolf v Brandt [2023] NSWDC 460
Case
[2023] NSWDC 460
Decision Date
CaseChat Overview and Summary
Woolf brought a claim against Brandt for defamation, relating to two Facebook posts. The claim was initially struck out in December 2022 due to defects in the concerns notice procedure for the second publication. A fresh concerns notice was served in March 2023, and Woolf recommenced the claim for the second publication in August 2023. Brandt applied to have the first claim struck out as an abuse of process. Woolf argued that an extension of time was required under the Limitation Act 1969 (NSW) and that leave to commence was required under s 23 of the Defamation Act 2005 (NSW). The court considered whether the delay in recommencing the claim was just and reasonable and whether the second statement of claim was an abuse of process.
The court found that the delay in recommencing the claim was not just and reasonable, and the second statement of claim was an abuse of process. The court held that the Limitation Act 1969 (NSW) did not provide a basis for an extension of time, and the second statement of claim was an abuse of process. The court found that the plaintiff’s conduct in recommencing the claim after it had been struck out was an abuse of the court’s process. The court held that the plaintiff had acted unreasonably in delaying the recommencement of the claim and that the delay had caused significant prejudice to the defendant.
Accordingly, the court granted Brandt’s application to have the proceedings struck out. The court found that the plaintiff’s conduct in recommencing the claim after it had been struck out was an abuse of the court’s process and that the delay in recommencing the claim was not just and reasonable. The court held that the plaintiff’s conduct amounted to an abuse of process and that the proceedings should be struck out and dismissed. The court also ordered that Woolf pay Brandt’s costs of the proceedings, with liberty to apply on all costs issues, including the bringing of an application for costs to be determined by a gross sum costs order. The exhibits were retained until further order.
Orders
Orders of the court
(1) The defendant’s application that these proceedings be struck out by reason of having been brought outside the limitation period (s 56A(2) of the Limitation Act 1969 (NSW)) is granted.
(2) These proceedings are struck out and dismissed.
(3) The plaintiff is to pay the defendant’s costs of these proceedings, with liberty to apply on all costs issues including the bringing of an application for costs to be determined by a gross sum costs order.