Onakoya v The Sydney Children’s Hospital Network (Randwick & Westmead) (incorporating the Royal Alexandra Hospital for Children) (trading under the business name & style of The Children’s Hospital at Westmead) [2024] NSWSC 1004

Supreme Court New South Wales

Medium Neutral Citation: Onakoya v The Sydney Children's Hospital Network (Randwick & Westmead) (incorporating the Royal Alexandra Hospital for Children) (trading under the business name & style of The Children's Hospital at Westmead) [2024] NSWSC 1004 Hearing dates: 28 November 2023 Date of orders: 16 August 2024 Decision date: 16 August 2024 Jurisdiction: Common Law Before: Campbell J Decision: (1) Under ss 56A and 56D Limitation Act 1969 (NSW), extend the time for bringing the action in defamation to the filing of the original statement of claim on 1 April 2022. (2) Under r 14.28 Uniform Civil Procedure Rules 2005 (NSW) strike out the proposed amended statement of claim (Exhibit 2) filed on 22 June 2023 and direct the plaintiffs file a further amended statement of claim in conformity with the requirements of the said rules for actions claiming damages for defamation within six weeks of the date of this order. (3) List for directions before the Common Law Case Management Registrar on 11 October 2024 at 9 am. (4) Grant liberty to the defendant to apply on short notice to the Court and the plaintiffs in the event of non-compliance with order (2). (5) Dismiss the defendant's application for summary dismissal. (6) The costs of the parties, in the case of the plaintiffs only to the extent to which they may be legally recoverable, are costs in the case. If either party seeks a variation of this costs order, they are to lodge written submissions not exceeding 3 pages in length together with any necessary affidavit with my chambers within 14 days of todays date. The opposing party may have a period of a further 14 days to respond by lodging written submissions with my chambers not exceeding 3 pages in length. Catchwords: LIMITATION OF ACTIONS – defamation – Limitation Act 1969 (NSW), s 56A – extension of limitation period – "not reasonable test" – test satisfied – ongoing investigation – plaintiffs' subjective circumstances – court's general discretion to determine length of extension Legislation Cited: Children and Young Persons (Care and Protection Act) 1998 (NSW), s 245G Defamation Act 2005 (NSW), s 24 Defamation Amendment Act 2020 (NSW) Limitation Act 1969 (NSW), ss 14B, 56A, 56D, Sch 5 Pt 4 cl 11 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 14.30, 15.19 Cases Cited: Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 Barrett v TCN Chanel 9 Pty Ltd (2017) NSWLR 478; [2017] NSWCA 304 Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176 Cox v Courneaux (No 2) (1935) 52 CLR 713; [1935] HCA 48 Drayton Coal Pty Ltd v Drain [1995] NSWCA 131 General Steel Industries Inc. v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 Noonan v MacLennan [2010] 2 QdR 537; [2010] QCA 50 O'Sullivan v Farrer (1989) 168 CLR 210; [1989] HCA 61 Onakoya (through her legal guardian Matthew Onakoya) v The Sydney Children's Hospital Network (Randwick & Westmead) (incorporating the Royal Alexandra Hospital for Children) (trading under the business name & style of The Children's Hospital at Westmead) [2022] NSWSC 1261 Onakoya v The Sydney Children's Hospital Network (No 2) [2023] NSWSC 1128 Rayney v State of Western Australia (No 3) [2010] WASC 83 Ritson v Gay and Lesbian Community Publishing Limited [2012] NSWSC 483 Category: Procedural rulings Parties: Mathew Onakoya (First Plaintiff) Olamide Onakoya, (Second Plaintiff) The Sydney Children's Hospitals Network (Randwick & Westmead) (incorporating the Royal Alexandra Hospital for Children) (trading under the business name & style of The Children's Hospital at Westmead) (Defendant) Representation: Counsel: Self-represented (Plaintiffs) C M Roberts (Defendant)