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York v Morgan

York v Morgan

Case [2015] NSWDC 109 11 June 2015

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District Court

New South Wales

Medium Neutral Citation: York v Morgan [2015] NSWDC 109
Hearing dates: 11 June 2015
Date of orders: 11 June 2015
Decision date: 11 June 2015
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Plaintiff’s application to extend time pursuant to ss 14B and 56A Limitation Act 1969 (NSW) is dismissed.
(2) Statement of claim struck out and dismissed.
(3) No order as to costs.

Catchwords: TORT – defamation – application to extend time to commence proceedings for defamation pursuant to ss 14B and 56A Limitation Act 1969 (NSW) – plaintiff commences proceedings three weeks out of time – whether “Not reasonable” to have commenced proceedings – plaintiff’s ill health, lack of legal knowledge and pursuit of information to identify the author and publications through non-legal avenues insufficient to satisfy this test – application dismissed – statement of claim struck out and dismissed
Legislation Cited: Limitation Act 1969 (NSW), ss 14B and 56A
Cases Cited: Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676
Carey v Australian Broadcasting Corporation [2010] NSWSC 709
Cassar v Network Ten Pty Ltd [2012] NSWSC 680
Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498
Hunter v Hanson [2014] NSWCA 263
Kaiser v George Laurens (NSW) Pty Ltd [1982] 1 NSWLR 294
Leech v Green & Gold Energy Pty Ltd [2011] NSWSC 999
Miller v R L Polk & Co (Australia) Pty Ltd, Supreme Court of New South Wales, Hunt J, 4 July 1985
Moran v Schwartz (No 3) [2015] WASC 215
Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537
Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175
Piscioneri v Reardon [2015] ACTSC 61
Rayney v Western Australia (No 3) [2010] WASC 83
Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611
Ritson v Gay and Lesbian Community Publishing Ltd [2012] NSWSC 483
Snezana Angeleska (Known As Slaveska) v State of Victoria and Others (According To The Attached Schedule) [2015] VSCA 140
Stephen York and NSW Department of Education and Communities [2015] NSWIRComm 1011
Wookey v Quigley (No 2) [2010] WASC 209
Category: Principal judgment
Parties: Plaintiff: Stephen York
First Defendant: Peter Morgan – Principal – Brewarrina Central School
Second Defendant: State of New South Wales
Representation:
Counsel:
Plaintiff: Mr S York (in person)
Defendants: Ms S Chrysanthou
Solicitors:
Plaintiff: In person
Defendants: Crown Solicitors Office

File Number(s): 2014/142190
Publication restriction: None

Judgment

This is an application by the plaintiff pursuant to s 56A Limitation Act 1969 (NSW) to extend the limitation period of one year for the commencement of defamation proceedings under s 14B of that legislation.
The plaintiff, who at all relevant times has acted for himself, commenced proceedings in the Parramatta registry of this court by statement of claim filed on 6 May 2014 (as amended on 4 March 201), pleading a claim for defamation against the defendants as follows:

“4. Defendants falsely stated in both internal and external school report that Mr York on a number of…

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 York v Morgan

Details

AGLC: York v Morgan [2015] NSWDC 109
Case: [2015] NSWDC 109
Decision Date: 11 June 2015

CaseChat Overview and Summary

York brought an action against Morgan for defamation. The crux of the matter was the defendant's alleged defamatory statements published in various forums, which the plaintiff claimed had harmed his reputation. The application was made in the Supreme Court of New South Wales, where the plaintiff sought an extension of time to commence proceedings as permitted under sections 14B and 56A of the Limitation Act 1969 (NSW). The plaintiff had initiated the proceedings three weeks past the statutory deadline, citing reasons such as ill health, lack of legal knowledge, and an ongoing effort to identify the author and publications through non-legal channels.

The central legal issue the court needed to resolve was whether the plaintiff had a reasonable explanation for the delay in filing the lawsuit. The plaintiff argued that their ill health, lack of legal knowledge, and efforts to identify the author and publications justified the late filing. The court needed to determine whether these factors were sufficient to meet the "not reasonable" test under the statute, which requires the plaintiff to show that it was not reasonable for them to have commenced the action within the statutory period.

The court held that the plaintiff's reasons for the delay were insufficient to satisfy the "not reasonable" test. The court noted that while the plaintiff's health issues and lack of legal knowledge might have contributed to the delay, they did not justify the late filing of the proceedings. Additionally, the court found that the plaintiff's efforts to identify the author and publications through non-legal means did not constitute reasonable steps towards filing the lawsuit. Consequently, the plaintiff's application to extend time was dismissed, and the statement of claim was struck out and dismissed. The court made no order as to costs.

Orders

Orders of the court

(1) Plaintiff’s application to extend time pursuant to ss 14B and 56A Limitation Act 1969 (NSW) is dismissed.

(2) Statement of claim struck out and dismissed.

(3) No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

York v Morgan [2015] NSWDC 109

Most Recent Citation

Van Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953

Cases Citing This Decision

Ferguson v State of South Australia (No 2) [2019] SASC 10
Citation 1 (Para 24)

…here the not reasonable test had been met. In my view the factors identified by Gibson DCJ might be relevant to the exercise of that discretion. [16] [2015] NSWDC 109 at [21].…
Otto (a.k.a. Ashworth) v Gold Coast Publications Pty Ltd [2017] NSWDC 101
Citation 2 (Para 42)

…A similar argument was raised before me in York v Morgan (2015) 20 DCLR (NSW) 341. In Mr York’s case, he lived in a remote part of New South Wales and had difficulty finding legal advisers at all, let alone any who were knowledgeable about the law of defamation; in the end, he commenced proceedings without assistance,…
Van Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953
Citation 3

…6; Noonan v MacLennan [2010] 2 Qd R 537; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; Wookey v Quigley (No 2) [2010] WASC 209; York v Morgan [2015] NSWDC 109; Rayney v State of Western Australia (No 3) [2010] WASC 83; Ritson v Gay & Lesbian Community Publishing Ltd & Ors [2012] NSWSC 483; Han v Australian…
Schoch v Palmer [2016] QSC 147
Citation 4 (Para 8)

…ng a proceeding for defamation, but not serving it on Mr Palmer for some time.[21] [21] See Hunter v Hanson [2014] NSWCA 263 at [72]; York v Morgan [2015] NSWDC 109 at [14].…

See all citing cases →

Cases Cited

Moran v Schwartz Publishing Pty Ltd (No 3) [2015] WASC 215
Citation 1 (Para 4)

…Energy Pty Ltd [2011] NSWSC 999 at [8]). The defendant cannot be heard to complain about failure to bring prior proceedings: Moran v Schwartz (No 3) [2015] WASC 215 at [52] – [74].…
Angeleska (known as Slaveska) v State of Victoria [2015] VSCA 140
Citation 2 (Para 1)

…discovery against a wide range of persons ( Snezana Angeleska (Known As Slaveska) v State of Victoria and Others (According To The Attached Schedule) [2015] VSCA 140 at [119] – [126]; Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498 at [22]). This could be an expensive and time-consuming process, an…
Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611
Citation 3 (Para 2)

…st one publication to go on with, to bring further applications during the conduct of the proceedings: Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611. This would be an expensive course if the wrong defendants were sued.…
Piscioneri v Reardon [2015] ACTSC 61
Citation 4 (Para 20)

…ssion that this amounts to fraud is not made out, as there was no concealment of the identity of the person making the claim (cf Piscioneri v Reardon [2015] ACTSC 61) and, additionally, the likelihood of vicarious liability of the fifth defendant for the statements of its servants or agents (whoever they may have…
Hunter v Hanson [2014] NSWCA 263
Citation 5 (Para 3)

…s contrary to natural justice, a plaintiff can commence proceedings and simply not serve the statement of claim on the defendants. In Hunter v Hanson [2014] NSWCA 263 at [72] the Court acknowledged that a plaintiff who feared to commence proceedings in case the publication was made on an occasion of absolute privil…
Cassar v Network Ten Pty Ltd [2012] NSWSC 680
Citation 6 (Para 7)

…he statutory provisions are a difficult hurdle for a plaintiff to overcome. The principles are summarised by Hislop J in Cassar v Network Ten Pty Ltd [2012] NSWSC 680 at [16] as follows:…
Carey v Australian Broadcasting Corporation [2012] NSWCA 176
Citation 7 (Para 8)

…As Beazley JA noted in Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90 at [55], the test does not direct attention to whether it was reasonable not to have commenced proceedings, but instead requires the court to be satisfied that it was “not reasonable” to have commenced the action prior to expiry of…
Ritson v Gay & Lesbian Community Publishing Ltd & Ors [2012] NSWSC 483
Citation 8 (Para 13)

…al in other courts. The fact that a plaintiff is pursuing other avenues of redress is irrelevant: Ritson v Gay and Lesbian Community Publishing Ltd [2012] NSWSC 483 at [13]-[27]. This is reinforced by the Queensland Court of Appeal’s decision in Pingel v Toowoomba Newspapers Ltd , where an application for extension…
Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498
Citation 9 (Para 1)

…tate of Victoria and Others (According To The Attached Schedule) [2015] VSCA 140 at [119] – [126]; Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498 at [22]). This could be an expensive and time-consuming process, and the risk would be that the correct person might not be identified before the limit…
Leech v Green & Gold Energy Pty Ltd [2011] NSWSC 999
Citation 10 (Para 4)

…3 if previous proceedings had been commenced, but would not require leave if proceedings had not been commenced ( Leech v Green & Gold Energy Pty Ltd [2011] NSWSC 999 at [8]). The defendant cannot be heard to complain about failure to bring prior proceedings: Moran v Schwartz (No 3) [2015] WASC 215 at [52] – [74].…
Wookey v Quigley (No 2) [2010] WASC 209
Citation 11 (Para 9)

…as been remarked upon in a number of judgments, notably Rayney v State of Western Australia (No 3) [2010] WASC 83 at [41] and Wookey v Quigley (No 2) [2010] WASC 209. It is irrelevant that a plaintiff is in poor health, or lives in a remote rural community where access to legal advice is limited, or seeks alternat…
Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175
Citation 12 (Para 10)

…ow those steps should be taken, but it is clear from decisions such as Noonan v MacLennan [2010] QCA 50 and Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 that those steps require the commencement of proceedings. In Pingel v Toowoomba Newspapers Pty Ltd the court held that even attempts to obtain an apology…
Carey v Australian Broadcasting Corporation [2010] NSWSC 709
Citation 13

…9 (NSW), ss 14B and 56A Cases Cited: Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 Carey v Australian Broadcasting Corporation [2010] NSWSC 709 Cassar v Network Ten Pty Ltd [2012] NSWSC 680 Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498 Hunter v Hanson [2014] NSWCA 263 Kaiser v George Laurens (NSW…
Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676
Citation 14 (Para 12)

…ptions is where the plaintiff is unaware of the publication, or unable to identify the publisher or prove publication ( Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [52]). Simpson J went on to say that another exception may be where the plaintiff is engaged in “non-litigious processes to vindicate his or her r…
Rayney v State of Western Australia (No 3) [2010] WASC 83
Citation 15 (Para 9)

…The harshness of the test has been remarked upon in a number of judgments, notably Rayney v State of Western Australia (No 3) [2010] WASC 83 at [41] and Wookey v Quigley (No 2) [2010] WASC 209. It is irrelevant that a plaintiff is in poor health, or lives in a remote rural community where access to legal advice i…
Noonan v MacLennan [2010] QCA 50
Citation 16 (Para 10)

…he publication”. What Kenneth Martin J does not say is how those steps should be taken, but it is clear from decisions such as Noonan v MacLennan [2010] QCA 50 and Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 that those steps require the commencement of proceedings. In Pingel v Toowoomba Newspapers Pty L…
Stephen York and NSW Department of Education and Communities [2015] NSWIRCOMM 1011
Citation 17 (Para 11)

…edings between the parties in the Industrial Relations Commission of New South Wales ( Stephen York and NSW Department of Education and Communities [2015] NSWIRComm 1011), as well as through employment-related administrative procedures relating to the circumstances in which he sought to response to the complaints in que…

Legislation Cited

Limitation Act 1969 (NSW) 14B, 56A
3 mentions (from Para 1)

Medium Neutral Citation:	York v Morgan [2015] NSWDC 109
Hearing dates:	11 June 2015
Date of orders:	11 June 2015
Decision date:	11 June 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiff’s application to extend time pursuant to ss 14B and 56A Limitation Act 1969 (NSW) is dismissed. (2) Statement of claim struck out and dismissed. (3) No order as to costs.
Catchwords:	TORT – defamation – application to extend time to commence proceedings for defamation pursuant to ss 14B and 56A Limitation Act 1969 (NSW) – plaintiff commences proceedings three weeks out of time – whether “Not reasonable” to have commenced proceedings – plaintiff’s ill health, lack of legal knowledge and pursuit of information to identify the author and publications through non-legal avenues insufficient to satisfy this test – application dismissed – statement of claim struck out and dismissed
Legislation Cited:	Limitation Act 1969 (NSW), ss 14B and 56A
Cases Cited:	Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 Carey v Australian Broadcasting Corporation [2010] NSWSC 709 Cassar v Network Ten Pty Ltd [2012] NSWSC 680 Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498 Hunter v Hanson [2014] NSWCA 263 Kaiser v George Laurens (NSW) Pty Ltd [1982] 1 NSWLR 294 Leech v Green & Gold Energy Pty Ltd [2011] NSWSC 999 Miller v R L Polk & Co (Australia) Pty Ltd, Supreme Court of New South Wales, Hunt J, 4 July 1985 Moran v Schwartz (No 3) [2015] WASC 215 Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537 Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 Piscioneri v Reardon [2015] ACTSC 61 Rayney v Western Australia (No 3) [2010] WASC 83 Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611 Ritson v Gay and Lesbian Community Publishing Ltd [2012] NSWSC 483 Snezana Angeleska (Known As Slaveska) v State of Victoria and Others (According To The Attached Schedule) [2015] VSCA 140 Stephen York and NSW Department of Education and Communities [2015] NSWIRComm 1011 Wookey v Quigley (No 2) [2010] WASC 209
Category:	Principal judgment
Parties:	Plaintiff: Stephen York First Defendant: Peter Morgan – Principal – Brewarrina Central School Second Defendant: State of New South Wales
Representation:	Counsel: Plaintiff: Mr S York (in person) Defendants: Ms S Chrysanthou Solicitors: Plaintiff: In person Defendants: Crown Solicitors Office
File Number(s):	2014/142190
Publication restriction:	None