Wecker v Davison [2019] NSWSC 1612

Supreme Court New South Wales

Medium Neutral Citation: Wecker v Davison [2019] NSWSC 1612 Hearing dates: 8 November 2019 Decision date: 08 November 2019 Jurisdiction: Common Law Before: Sackar J Decision: Ex tempore reasons given in court. See para 10. Catchwords: LIMITATION OF ACTIONS — Torts — Defamation — Whether proceedings should be struck out as out of time — Whether time should be extended Legislation Cited: Limitation Act 1969 (NSW) Cases Cited: Parizian v Seven Network Limited [2013] NSWDC 296 Category: Principal judgment Parties: Paul J Wecker (plaintiff) Professor C Davison (first defendant) Blacktown Boys High School (second defendant) Teachers' Institute of NSW (third defendant) Representation: Counsel: No representation (plaintiff) T Senior (first defendant) No appearances (3rd & 4th defendants)

Solicitors: Self represented (plaintiff) E Grinston, University of NSW Legal Office (first defendant) File Number(s): 2019/294837

Judgment – ex tempore 1. HIS HONOUR: These proceedings are before the Court for the first occasion this morning. 2. The plaintiff is a litigant in person. He was notified prior to today that application was going to be made effectively to strike the proceedings out as being out of time. He was provided with certain materials including the relevant provisions of the Limitation Act 1969 (NSW). I inquired of Mr Wecker this morning as to whether he was ready to deal with this argument today and he assured me he was. 3. In my view, for reasons I will briefly come to in a moment, his cause of action is out of time and there is no basis on the facts of this case for an extension of time. I will deal with the precise orders in a moment. 4. The letter about which Mr Wecker complains is dated 24 June 2010. He was immediately aware of the letter by reason of his response on 25 June 2010, the day after, and later in that year he was communicating about it as well. Importantly, on 25 June he immediately described the letter as a defamation. 5. Under the law in New South Wales, section 14B of the Limitation Act, a cause of action for defamation is not maintainable if brought after the end of the limitation of one year running from the date of the publication of the matter complained of. There is provision, however, in section 56A of the Act to extend the limitation period. Mr Wecker makes such an application. 6. Section 56A(1) indicates that a person claiming to have a cause of action may apply. He has certainly done that. However, section 52A(2) states, "The Court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the date of the publication, extend the limitation period in section 14B to a period up to three years running from the date of the publication." 7. On any view of the facts of this case, it seems to me, first, Mr Wecker was well aware of publication shortly after it occurred and complained about it. It seems to me that on any view of the facts he could not take advantage of section 56A(2) in any event for that reason alone. 8. Judge Gibson in a decision to which I have been referred, in Parizian v Seven Network Limited [2013] NSWDC 296 at paragraphs 13 and following, helpfully and precisely sets out the principles. 9. In my view, there is nothing in her Honour's judgment that is erroneous and I would adopt what she says about the law and what she says in particular about these sections. The onus which any person bears under section 56A(2) has been described as a heavy one. 10. In the circumstances of this case, it seems to me that Mr Wecker does not fall within any basis upon which the Court could extend time even if he were able otherwise to satisfy me that these proceedings have some merit and should proceed.