Federal Court of Australia

Do v Kolsumdet Pty Ltd [2022] FCA 1057

ORDERS

THE COURT ORDERS THAT:

1.    The applicants be granted an extension of the limitation period in which to commence proceedings against Ms Hahn To, pursuant to s 56A of the Limitation Act 1969 (NSW), up to and including 4.00 pm on Friday, 9 September 2022.

2.    The applicants have leave to file and serve an amended statement of claim and originating application to join Ms Hahn To as a sixth respondent and to make other amendments substantially in the form annexed to the affidavit of Mr Stewart O’Connell affirmed 16 June 2022.

3.    The applicants pay the costs of the first to fifth respondents thrown away by reason of the amendments.

4.    Ms To as the sixth respondent pay the applicants’ costs of and incidental to the application for an extension of time.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex-tempore)

BROMWICH J:

1    This is an interlocutory application for an order under s 56A of the Limitation Act 1969 (NSW) to extend the one-year limitation period under s 14B of that Act for bringing a cause of action for defamation. The application is brought upon the version of those provisions prior to amendments that took place on 1 July 2021.

2    The following authorities on s 56A and its equivalents in other jurisdictions 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] (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 have emerged from the authorities are as follows:

a)    The statutory tests respectively require the Court to determine whether on an objective basis the reasons why the plaintiff did not commence the suit within time point to the conclusion that it was not reasonable to commence the action: Pingel at [115].

b)    What is meant by “on an objective basis” is that the circumstances are as they appear objectively to the court and not the circumstances which the plaintiff believed, however unreasonably, to exist: Barrett at [70] citing Noonan at [20]. The focus must be on the individual circumstances of the case: Pingel at [42], and the plaintiff's actual reasons are a vital part of the circumstances pertinent to whether it was reasonable or not to bring the proceedings within the nominated period: Carey v Australian Broadcasting Corporation [2010] NSWSC 709; 77 NSWLR 136 at [48].

c)    The burden of establishing that it was not reasonable to commence within the one-year period is on the plaintiff: Barrett at [70], citing Noonan at [15], although a plaintiff does not have to account for every day or week in a limitation year: Noonan at [49].

3    The application is brought in somewhat unusual circumstances in that proceedings were commenced against five respondents within the limitation period. The applicants only became aware of the existence of the prospective sixth respondent upon receiving a defence to the statement of claim that was filed within time. That defence as pleaded included honest opinion under s 31 of the Defamation Act 2005 (NSW) in respect of seven out of eight publications on social media, naming that person, Ms Hanh To, as expressing an honest opinion in relation to the matters complained of.

4    None of the existing respondents oppose the extension of time, that stance being communicated in advance of the hearing of the interlocutory application and being overtly stated in the written submissions. The applicants also seek leave to file an amended statement of claim with amendments going beyond the addition of Ms To, and that too is not opposed by the existing respondents, subject to an order for costs being thrown away. Ms To opposes the extension of time upon the basis that the applicants have not discharged the onus of proving that it was not reasonable to have commenced proceedings against her within time, as required by s 56A of the Limitation Act.

5    The nature of the defamation case may be briefly stated. On the evening of 25 December 2020, the applicants attended at a restaurant owned by the first respondent, a company. Putting the situation in somewhat vanilla terms, the meal was not to their liking and they left the restaurant without paying for the meal. The restaurant had both a Facebook account and an Instagram account, which had posted on it adverse comments and characterisations of what the applicants had done.

6    The applicants retained experienced defamation solicitors. They made inquiries directed to ascertaining who was responsible for the publications. That included:

(a)    an ASIC search for the first respondent, which revealed the names of three directors of the company, who became the third, fourth and fifth respondents (supported by additional information about the third respondent who was at the restaurant on the night in question);

(b)    searches of the restaurant website, Facebook account and Instagram account, none of which revealed Ms To’s name;

(c)    a “Transparency Summary” for the restaurant Facebook page, which, while not very transparent, revealed that five unnamed people managed that page.

7    The applicants’ solicitor deposes in his second affidavit at [15] (emphasis added):

With the above searches in mind and on my reading and understanding of the responding letter of 13 September 2021, I formed the view that all of the correct respondents (based upon my understanding of their involvement in the publication of the matters complained of) were being joined to the originating application and statement of claim that I filed on 23 December 2021.

8    Additionally, on 7 April 2022, when the defence was filed and served, and after the limitation period had expired in late December 2021, the applicants’ solicitors sent an email to the solicitors for the first, and third to fifth respondents, asking them to “please advise who your clients say were the persons responsible for organising, creating and posting on the instagram and facebook accounts of the.first respondent”. The response by email the next day was “With respect, our clients are under no obligation to disclose the information sought and do not propose to do so.”

9    Counsel for Ms To (also appearing for the first, and third to fifth respondents), valiantly submitted that the response would likely have been different if the enquiry had been made before the limitation period, because of the risk of an application being made for preliminary discovery if it was not. I am unable to accept that argument. The inference I would draw is that an inquiry made during the limitation period would have elicited a similar response, unless and until an application for preliminary discovery was at least threatened, or perhaps not until such an application was made.

10    No application for preliminary discovery was made. Ms To relies upon two cases in which it was indicated that taking such steps were necessary: Cassar v Network Ten Pty Ltd [2012] NSWSC 680 per Hislop J at [21]-[22] and Clark v Ibrahim [2014] VSC 30 per Zammit AsJ at [69]. While those conclusions might have been reasonable in the circumstance of those cases, and with the mindset of eight to ten years ago, I do not think that approach is appropriate in a case such as this. The notion that this Court should be plagued by interminable preliminary discovery applications for online publications as a matter of course is not something that I am willing to lend support for, let alone to support this being effectively required to exhaust the range of possible publishers to be made respondents. That is not to say that a failure to take that step in less unusual circumstances may not be fatal to an application for an extension of a limitation period to bring a defamation case.

11    In the particular circumstances of this case, I am positively satisfied that it was not reasonable for the applicants to initially have joined Ms To, and that accordingly the application should be granted. These are the reasons for the orders I made.

Associate:

Dated:    8 September 2022

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