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) Solicitors: Hicksons Lawyers (Defendant) File Number(s): 2023/347867 JUDGMENT 1. The somewhat tortuous procedural history of this matter is narrated in the judgment of Adamson J in 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, and my judgment in Onakoya v The Sydney Children's Hospital Network (No 2) [2023] NSWSC 1128. This judgment assumes familiarity with those judgments. 2. As originally propounded, the statement of claim filed on 1 April 2022, named three plaintiffs, being Oluwatomi Onakoya as first plaintiff, Mr Mathew Onakoya as second plaintiff and Mrs Olamine Onakoya as third plaintiff. For convenience, and without meaning any disrespect, I will refer to them as Oluwatomi, Mathew and Olamide as appropriate for the purposes of this judgment. 3. Oluwatomi was born prematurely on 9 February 2019. She is the daughter of Mathew and Olamide. Her claim is for personal injury damages based upon the alleged negligence or other tort of the defendant during her post-natal care, specifically on 16 April 2019 when her head was allegedly "shaken". On 18 September 2023 for the reasons given in my judgment, I ordered that Mathew and Olamide be removed as parties from Oluwatomi's claim for personal injury damages. I had also previously ordered the separation of any claim for damages for defamation from Oluwatomi's claim for personal injury damages. This order had been complied with and the amended proposed statement of claim (identified as Exhibit 2) now names Mathew and Olamide as first and second plaintiffs, respectively. This document was served om the defendant as an annexure to Mathew's affidavit of 22 June 2023. It has been reproduced in the Court Books for the applications at hand. Background facts 1. From further particulars provided to the defendant by Mathew on behalf of himself and Olamide, it is clear that the defamation claim they wish to pursue is based upon the publication of a single document, being a report made to the Department of Community and Justice ("DCJ") by the medical head of the Child Protection Unit ("CPU") at the defendant hospital relating to Oluwatomi's presentation at the emergency department on 12 May 2019 with symptoms and signs consistent with traumatic brain injury, superimposed upon her other significant conditions associated with her premature birth. The traumatic brain injury has been confirmed by CT and MRI scans. Oluwatomi's presentation at the emergency department followed an apnoeic episode at home after nastro-gastric feeding. Milk was being expelled through her nose, her lips were purple or blue. She stopped breathing, turned blue her body was floppy with her eyes rolled back. This phase of the episode may have lasted as long as 5 minutes. The whole episode resolved gradually over the period of about 10 minutes and Oluwatomi was reported to be "her usual self" when the ambulance arrived. 2. Oluwatomi remained in hospital for observations and investigations. A neurological examination on 27 May 2019 suggested that she may be suffering "paroxysmal events" due to a swallowing or aspiration problem which had been noted prior to her discharge to her parents' care on 16 April 2019. However, there was a question about whether Oluwatomi was suffering "seizures" and a course of investigations were recommended. 3. An ultrasound of Oluwatomi's head on 29 May 2019 demonstrated a "new left-sided anechoic subdural collection" and raised the possibility of "non-accidental injury". "New" was by reference to prior radiological investigations before her previous discharge from hospital. An electroencephalogram ("EEG") on the same day was normal. The CT scan of Oluwatomi's head also on the same day was suggestive of "bilateral subdural hygromas/chronic subdural haematomas overlying the frontal lobes bilaterally". There was no acute haemorrhage or skull fracture. These findings were confirmed and more clearly visualised on the MRI of Oluwatomi's brain on 3 June 2019. 4. Oluwatomi's case was referred to the CPU on 30 May 2019 and she was examined by a CPU Registrar on 31 May 2019. When Mathew and Olamide were interviewed separately at the hospital, "it was explained that the findings were highly concerning for a past injury to Oluwatomi's head". Neither parent could recall any such injury. 5. In her initial report of 11 June 2019, the forensic paediatrician attached to the CPU expressed the opinion that the distribution of the subdural hygromas were consistent with an acceleration-deceleration (shaking) injury. Not all of the clinical signs were consistent with this opinion, but as the radiological appearances of the haematomas were suggestive of chronic injury and were not present on MRI performed at the age of 10 days, it was thought that other clinical signs consistent with a shaken baby injury may have dissipated. 6. The paediatrician said shaking injuries produced immediately apparent symptoms of the type reported by the parents upon presentation at the emergency department on 12 May 2019. The paediatrician concluded: "In summary, Oluwatomi's presentation with unexplained chronic bilateral subdural haemorrhages was highly concerning for a past inflicted (shaking) injury to her head". 1. As a result of the report of 11 June 2019 a police investigation by the Child Abuse Unit was commenced and Mathew and Olamide were interviewed by police separately at the Children's Hospital. The investigation was suspended on 17 June 2019 because Oluwatomi's injuries could not be accurately dated, or their origin confirmed. There was no sufficient evidence supporting a conclusion that she had been assaulted. The officer in charge of the investigation considered that Mathew and Olamide had given consistent versions of Oluwatomi's progress and of the incident of 12 May 2019. 2. On 11 June 2019, a teleconference had been held amongst interested government agencies, including the forensic paediatrician. The specialist adhered to her opinion, but stated, "she was unable to rule out the possibility [the injury] was caused at one of the hospitals [Oluwatomi] had been in since birth". 3. The police report recorded: "[Oluwatomi] has only spent 3 weeks in her 4 month life at home, at the end of April 2019. The injuries detected cannot be linked to this period of when [she] returned home. While [the forensic paediatrician] has stated the injuries are likely caused from a "shaking" motion, she stated there is a possibility, [Oluwatomi's] other medical conditions may have exacerbated the injuries and caused them to occur from a less severe action." 1. The publication relied on by Mathew and Olamide to found their proposed defamation action is a second report from the same forensic paediatrician of 14 August 2019 (Affidavit, Eun Sil Choi, 6 November 2023). The report was provided to answer questions raised by the DCJ Case Work Manager of the Central Metropolitan Joint Child Protection Response Program ("JCPRP"). It was to be read in conjunction with the report of 11 June 2019 to which I have already referred to. After a summary of the various accounts given by the parents on various dates on and after 12 May 2019 as to the onset of Oluwatomi's condition on 12 May 2019, the forensic paediatrician expressed the following opinion: "The symptoms described are all symptoms that have been described by carers who have admitted to shaking a baby. These carers report that the symptoms are immediately apparent after the shaking injury event. The findings on imaging of Oluwatomi's head could be explained by a shaking injury having occurred on 12 May 2019 at the time that the symptoms occurred as reported by Oluwatomi's parents". I interpolate the obvious implication is one or other parent must have been responsible for any such shaking injury. 1. As a result of the provision of the report of 14 August 2019, the JCPRP found that the allegations that Mathew and Olamide had physically harmed Oluwatomi were substantiated. The relevant harm was the shaking injury resulting in a brain injury and Mathew and Olamide "were listed as Persons Causing Harm". 2. Mathew and Olamide were given a copy of the report of 14 August 2019 on or about 28 August 2019 and from then on, over the following period of approximately 2 years, Mathew made repeated complaints concerning the outcome of the CPU's investigation and the findings of the JCPRP to the DCJ and eventually the responsible minister as well as to the Health Care Complaints Commission ("HCCC"). The complaints to the HCCC were dismissed. But eventually his persistence gained traction with the DCJ. 3. Without attempting to summarise all of the material Mathew raised in support of his complaints, pertinent matters include clinical notes from the Children's Hospital at Westmead documenting incidents of eye rolling, raising concerns about the possibility of seizures before Oluwatomi's original discharge on 19 April 2019. These documents were two records made by different, individual junior medical officers on 16 April 2019. The second of these, notes by Dr Gunaratne, recorded as findings on examination, "intermittently rolling eyes back (noted during feed, was thought to be potential seizure)". There was no "work of breathing" recorded on that occasion as was the case upon re-admission on 12 May 2019. The second matter was the opinion of a neurosurgeon, Dr Henry Lin, who apparently examined the MRI of 3 June 2019 and expressed the view that at least one of the subdural hematomas shown on the imaging was more than 28 days old. This opinion made it unlikely that any incident of shaking Oluwatomi occurred on or about 12 May 2019. There is an unresolved question in the clinical material about when Dr Lin formed this view. 4. As a result of Mathew's persistence, on 5 July 2021 (Affidavit, Eun Sil Choi, 6 November 2023, Exhibit F), the responsible minister acknowledged Mathew's "ongoing concerns about the medical records available at the time of the JCPRP assessment". He said he had requested an independent forensic analysis of the medical evidence considered in assessing "safety and risk to Oluwatomi". There was also a concern that Mathew's complaints had not been escalated appropriately, for which the minister apologised. 5. The review was carried out by an investigator in DCJ's Reportable Conduct Unit ("RCU"). The report was prepared on 22 July 2021 and counter-signed by the Director, Child Safety and Review. On his analysis, the investigator concluded that the clinical records indicate that Oluwatomi's injury could have occurred at any time between 27 March 2019 and 12 May 2019. This, however, needed to be considered in the context of the opinion of Dr Lin that at least the left sided haematoma contained blood older than 28 days, meaning the injury he identified was unlikely to have occurred after 7 May 2019. The investigator noted that there was no evidence of any consultation between Dr Lin and the forensic paediatrician. The investigator also acknowledged Mathew's reliance upon the medical records dated 16 April 2019, "potentially referring to the same observation [documenting] that seizures were suspected on 15 April 2019". There are no available records demonstrating whether there was further investigation at that time. The possibility that Oluwatomi's injury occurred prior to discharge on 19 April 2019 was recognised by the investigator. The investigator concluded that "based on the available information, the review is unable to provide a timeframe that isolates the injury or injuries to a specific period of care, or individual's care". It was recommended that further information be sought from the forensic paediatrician. 6. From a written briefing document prepared on the consideration of the Deputy Secretary DCJ on or about 16 October 2021, it is clear that further comments were sought from and provided by the forensic paediatrician who adhered to her previous views. From Dr Lin's opinion, she considered that there may have been more than one injurious episode. This increased her concern about Oluwatomi's parents. 7. However, the author of the briefing paper recommended that the finding that Mathew and Olamide physically harmed Oluwatomi by shaking her causing a brain injury was substantiated and the listing of them as Persons Causing Harm should be redetermined in their favour with an end date of 29 September 2021 when the review was completed. The original complaint or "issue" should be recorded as "Not Substantiated". It is not necessary for present purposes to summarise the reasons for this recommendation, which was subsequently approved by the responsible senior officer. Suffice it to say that the review found insufficient grounds from the original assessment to support the "substantiated" outcome. The results of the RCU review were summarised. A specific finding was made that Mathew could not have been recorded as a person causing harm as the JCPRP assessment indicated that it was highly unlikely that Mathew caused harm to Oluwatomi. He had been assessed as being a person able to provide safety to Oluwatomi prior to her being discharged on 19 April 2019 into her parents' care. I infer that it was unlikely that Olamide would cause harm to Oluwatomi as, in her husband's absence for work, DCJ organised additional services to support Olamide. Finally, it was recorded Mathew and Olamide have two older children and there had been no reports before or since about the family. It was found that they have demonstrated that they pose no further risk to their children. 8. By letter dated 1 November 2021 forwarded by email, the Director JCPRP stated: "JCPRP has determined that in light of the new information provided by you and the associated inconsistencies and time frames, there is insufficient evidence to conclude on the balance of probabilities that you are persons who caused harm to your child. This means that your names and contact details will be end dated as a Person Causing Harm on the Department of Communities and Justice data base. The end date will be backdated to 29 September 2021 which is the date the review was endorsed. I would like to apologise for any distress that the original decision has caused you and acknowledge that the review process has taken some time to complete." 1. I should also record for completeness that the evidence before me establishes that when the Police Child Protection Unit was contacted during the review, the suspension of the investigation was lifted, and the file was referred to another officer for internal review. There is no further information about the outcome of the police review. However, there is nothing to suggest that any adverse police action has been taken. 2. As I have said, the original statement of claim was filed on 1 April 2022. As part of the relief sought Mathew and Olamide sought damages "for the defendant's act of defamation". Paragraphs [76] to [83] of the pleading set out Mathew and Olamide's contentions in relation to defamation referring "particularly" to the forensic paediatrician's "biased medical opinion which was inconsistent with medical evidence, and which was not based on any medical evidence and led to the naming of the plaintiffs as persons causing harm in DCJ's website". It was averred that their reputation has suffered greatly, and they had suffered emotional and financial damage attempting to get DCJ to review its decision and clear their name. 3. Paragraphs [26] to [34] of the statement of claim plead the facts of the reports to the CPU, police and DCJ. It is clear from these passages that the opinion of the forensic paediatrician is impugned. While no specific mention of the report of 14 August 2019 appears, it is apparent the allegation is that the forensic paediatrician "deliberately gave out false and misleading information to the team of officers from New South Wales Police and Department of Communities and Justice". The pleadings set out in detail the steps taken to have the substantiated report reversed. Applications to be determined 1. This judgment deals with two notices of motion heard together. The first motion is Mathew and Olamide's motion containing two prayers for relief. The first is for an order for an extension of time nunc pro tunc to commence defamation proceedings by 18 September 2023. The second is an order granting leave to file the proposed amended statement of claim as an amendment of the pleading first filed on 1 April 2022. 2. The defendant's motion filed on 15 September 2023 seeks the following substantive prayer for relief: "If an order is made pursuant to s 56A of the Limitation Act 1969 (NSW) and leave is granted to Mr Matthew Onakoya and Mrs Olamide Onakoya to file the proposed amended statemen of claim appearing at Exhibit 2 to Mr Onakoya's affidavit affirmed 22 June 2023 (PSOC) (which the defendant opposes), the PSOC should be struck out pursuant to UCPR 14.28(1)(a) or (d) or dismissed pursuant to UCPRI 13.4(1)(b)". 1. The issues are: 1. must leave to extend time be refused because the maximum period during which time may be extended under s 56A, i.e., three years from the date of publication, has expired; 2. in the alternative, whether the plaintiffs have established the statutory condition for the exercise of the court's discretion to extend time "that it was not reasonable in the circumstances for the plaintiff to have commenced the action within the limitation period of 1 year from the date of publication"; 3. should the proposed amended statement of claim be struck out as disclosing no reasonable cause of action or as having a tendency to cause prejudice, embarrassment or delay; and 4. whether the proceedings for defamation should be summarily dismissed on General Steel Industries Inc. v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 principles. Relevant statutory provisions 1. Key provisions of the Limitation Act 1969 (NSW) (the "Act") referrable to actions for defamation were amended by the Defamation Amendment Act 2020 (NSW). Those amendments, however, apply in relation to the publication of defamatory matter after the commencement of the amendments on 1 July 2021: Sch 5, Pt 4, cll 11(1), (4). The present case continues to be governed, therefore, by the Act as it stood on 14 August 2019, the date of the publication upon which Mathew and Olamide sue. 2. By s 14B of the Act, an action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year, running from the date of the publication of the matter complained of. Clearly, this action was not so brought. Section 56A of the Act empowered the Court to extend the limitation period in limited circumstances. The key provision was s 56A(2). It provided: "A 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 1 year from the date of the publication, extend the limitation period mentioned in s 14B to a period of up to 3 years running from the date of the publication." By s 56D, an order for the extension of the limitation period may be made nunc pro tunc "even though the limitation period has already expired". Applicable principles 1. In Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [28], Simpson J (as her Honour then was) pointed out that s 56A differed somewhat from those provisions permitting the extension of a limitation provision on just and reasonable grounds or providing some other flexible exception to the period of limitation. Her Honour said: "[Section 56A] differs from such provisions in two respects. Firstly, it requires the plaintiff to prove that it was not reasonable to commence proceedings within time; secondly, far from conferring a discretion on the court to extend time if the plaintiff proves that fact, it obliges the court to extend time. Extension, in those circumstances, is mandatory." 1. In Ritson v Gay and Lesbian Community Publishing Limited [2012] NSWSC 483 at [14]-[15], Beech-Jones J (as his Honour then was) explained the difficult task facing a plaintiff required to prove that it was not reasonable to bring the action within the limitation period in the following terms: "First, the burden imposed upon a party applicant seeking an extension is a heavy one. It is not sufficient for them to prove that it was reasonable for them to delay commencing proceedings. Rather they are driven to demonstrating that it was not reasonable for them to start within the 12 month period (Ahmed at [39]). Not surprisingly this has been described as a "difficult hurdle" (Rayney at [41]) and one which can only be satisfied in "relatively unusual circumstances" (Noonan at [15], per Keane JA). Second, the test is an objective one requiring a consideration of the circumstances "as they appear objectively to the court" (Noonan at [20], per Keane JA). Ignorance on the part of the plaintiff as to the time limits specified cannot afford a reasonable basis for not commencing proceedings (Noonan at [22] per Keane JA). However, this does not mean that the plaintiff's motivations or thought processes are irrelevant (Carey at [46] to [48]). In Carey McCallum J approved the following as a statement of the correct approach (at [48]): " .... the test requires attention to the plaintiff's actual reasons, as they are a vital part of the circumstances pertinent to whether it was reasonable or not to bring to the proceedings within the nominated period."" (Rayney is a reference to Rayney v State of Western Australia (No 3) [2010] WASC 83; Noonan to Noonan v MacLennan [2010] 2 QdR 537; [2010] QCA 50; and Carey to Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176). 1. The principles enunciated by Simpson J and Beech-Jones J are the same as those expressed in Barrett v TCN Chanel 9 Pty Ltd (2017) NSWLR 478; [2017] NSWCA 304 (per McColl JA at [69]-[84]; Simpson JA agreeing at [108]; and Payne JA at [114] and [117]). 2. In Barrett, McColl JA (at [71]-[72]) emphasised that the "not reasonable test" is a difficult one to satisfy. Normally it will require the applicant to establish something "relatively unusual", "special" or "compelling": Noonan at [67] (per Chesterman JA). 3. Her Honour also pointed out that while satisfaction of the "not reasonable test" mandates an extension of time, the court retains a general discretion as to the period of extension allowed: Barrett at [75]. As the purpose of the Act's provisions applying to defamation actions is requiring such actions to be brought and determined promptly, as the outcome in Barrett itself demonstrates a plaintiff may tarry too long after the expiration of the period during which it was not reasonable to commence proceedings such that the extension properly allowable within the maximum period of three years may yet fall short of the date upon which the plaintiff commenced the action so that those proceedings are fatally out of time (Barrett at [91]; O'Sullivan v Farrer (1989) 168 CLR 210 at 216; [1989] HCA 61 (per Mason CJ, Brennan, Dawson and Gaudron JJ). 4. Given that the defendant has raised the General Steel principles in argument, I think it well to observe that I am not aware of any authority dealing with the question whether the legal bounds of the general discretion permit a refusal of the express statutory mandate to extend time notwithstanding the satisfaction of the "not reasonable test" on the ground that the action is clearly untenable in the General Steel sense. In a different limitation of action context, it would not be "just and reasonable" to permit an action to proceed unless the plaintiff demonstrated by evidence led on the application for extension of time that the action had at least some prospect of success at final hearing: cf Drayton Coal Pty Ltd v Drain [1995] NSWCA 131. The first issue – the applicability of the long stop limitation period 1. I understood Ms Roberts of counsel, who appears for the defendant, to argue that Mathew and Olamide's action for defamation was fatally flawed because no proceedings claiming damages for defamation had been properly commenced before the filing of the proposed amended statement of claim referrable to the defamation claim (Exhibit 2) on 22 June 2023. This was beyond what might be described as the s 56A "long stop" limitation period of 3 years from the date of publication. This argument is premised upon the establishment of the fact that the statement of claim filed by Mathew on 1 April 2022 did not articulate a claim for defamation. Clearly the PSOC was not filed within 3 years of the date of publication of the impugned report of the forensic paediatrician. 2. I am not persuaded that this argument is correct. In my view, while the statement of claim filed on 1 April 2022 was irregular because it joined Oluwatomi's personal injuries claim and Mathew and Olamide's defamation claim in the one proceedings, and did not comply with the requirements for pleading and particularising a claim for damages for defamation, in my view it did, in substance, seek to raise a defamation claim not only by articulating such a claim in the prayers for relief, but also by pleading facts upon which it was advanced in those passages in the statement of claim to which I have referred to above (at [23]-[24]). 3. While r 14.30(1) Uniform Civil Procedure Rules 2005 (NSW) was contravened because allegations were made that the matter complained of was "false", and r 14.30(2) was not complied with, the substance of the complaint was clear i.e., that the forensic paediatrician expressed the opinion that Mathew and Olamide were persons who caused harm to their baby daughter. It has now been made clear by way of further and better particulars that the publication relied upon is the more extensive report of 14 August 2019 which incorporates the earlier report of 11 June 2019. Clearly, as Ms Roberts has correctly pointed out, the original statement of claim and the proposed amended statement of claim are also irregular by the failure to draft them in compliance with the provisions of Div 4 of Pt 15 UCPR and in particular r 15.19, a matter to which I will return. But I am not satisfied that the plaintiff's action for defamation is not salvageable because it is necessarily beyond the powers conferred on the Court by s 56A of the Act. The second issue – was it not reasonable in the circumstances for the plaintiff's to have commenced the action within 1 year of publication 1. As I have made clear, Mathew relies upon the publication of the forensic paediatrician's report of 14 August 2019, a copy of which, it is common ground, was provided to him under cover of an email dated 28 August 2019. As I have stated, the report of 14 August 2019 incorporated the earlier report of 11 June 2019. On the basis of the later report, the JCPRP found that the allegations that Mathew and Olamide had physically harmed Oluwatomi were substantiated. They were publicly listed as Persons Causing Harm. 2. Mathew argues that it was not reasonable for him and his wife to have commenced an action for defamation within 1 year of the 14 August 2019 in all the circumstances as it was a practical necessity for him to have that finding not only set aside, but replaced by a finding that the allegation was not substantiated and to have his and his wife's names deleted from the list of Persons Causing Harm. The exoneration, as it were, of him and his wife did not occur until 16 October 2021 and Mathew and Olamide were not advised of it until they received a letter of the Director JCPRP dated 1 November 2021. 3. It may not have been a legal necessity for Mathew to have had the adverse finding against him and his wife reversed before commencing defamation proceedings. Obviously, the facts underpinning the adverse finding could have been challenged in the defamation proceedings. A court would not have been bound by the administrative action of DCJ. At the same time, there can be no doubt that the defendant, properly advised, would utilise the adverse findings against Mathew and Olamide. At a practical level the adverse finding would have been a very large obstacle in their path to successfully prosecuting an action for defamation. And the failure to take action to have the record corrected would inevitably have been deployed to the attempted forensic advantage of the defendant. 4. It may be that the adverse finding was not in the same category as an ongoing police investigation, or criminal prosecution for that matter, which may make it not reasonable in the circumstances for a person to delay bringing an action for defamation until the investigation or prosecution is resolved in his or her favour. Here, of course, the police investigation was shut down at an early stage because investigators deemed the evidence to be inconclusive and incapable of supporting a prosecution. Even if that decision had been reviewed in the middle of 2021, nothing seems to have come of that review. 5. But an ongoing police investigation or criminal prosecution cannot be the only circumstance capable of supporting a finding that it was not reasonable to commence an action for defamation within time. The evidence before me, which I have attempted to summarise above under the heading "Background facts" certainly shows that Mathew was persistent and diligent in locating evidence to undermine the adverse finding and tenacious in articulating his complaints to DCJ, and other relevant authorities, including the responsible minister. There was no lack of application on his part. 6. I am of the view that Mathew's persistence and diligence in pursuing the matter was impressive for a number of reasons. First, his personal circumstances must be appreciated. He and his wife were immigrants from Nigeria working hard to establish themselves in their new homeland. Following Oluwatomi's birth and the emergence of her severe disabilities, it was necessary for Olamide to give up her employment to care for a disabled baby. Mathew and Olamide, as I have pointed out, were already the parents of two young children and the demands of family on them would have been considerable, and considerably time consuming, during this period. Mathew was also in full time employment. Oluwatomi's disability had reduced the family situation to the position where he was the sole breadwinner with an onerous burden of fulltime work and domestic responsibilities. Mathew's time was doubtless strictly limited. That he was able to pursue and eventually obtain a review of DCJ's adverse finding against him and his wife is a considerable achievement given the adversities under which he was forced to labour. 7. To my mind, all of these circumstances together combine to satisfy the difficult test imposed by s 56A of the Act by use of the phrase "not reasonable to commence proceedings" within the time limited by s 14B of the Act. If at the practical level the test requires something relatively "unusual", "special" or "compelling" as expressed in Noonan and applied in Barrett, I am satisfied that these circumstances taken together satisfy that test. 8. Having made this finding, I am required by law to extend the limitation period mentioned in s 14B of the Act. It remains to exercise the general discretion to determine the length of the extension properly permissible, having regard to the legislative purpose underpinning ss 14B and 56A. I have already indicated that I am satisfied that the irregular statement of claim filed on 1 June 2022 clearly articulates a claim for damages for defamation on behalf of both Mathew and Olamide. The question is what the justice of the situation requires, bearing in mind the position of each of the plaintiff and the defendant, as well as the statutory purpose that claims for damages in defamation should be brought and determined relatively promptly. Is an extension to 1 June 2022, a period of some 7 months after the letter of 1 November 2021, too long? I am of the view this is the correct approach to crystalising the issue. To proceed otherwise is to adopt too abstract an approach not rooted in the actual circumstances of the case. 9. Mathew's personal circumstances had not changed. While he may have been able to find a lawyer to assume the carriage of Oluwatomi's claim for damages, I am doubtful that he could have readily found a lawyer experienced in media law or the like to accept a retainer in this defamation action which is bound to have its own difficulties and uncertainties on a "no win, no fee" basis. 10. I do not understand the defendant to assert any forensic prejudice. It is clear that the forensic paediatrician was asked to re-visit the matter in September 2021 by reference to specific issues identified by the investigator reviewing the adverse finding and was able to strongly maintain her original opinion. There is no suggestion of any relevant loss of evidence between 1 November 2021 and 1 June 2022, or subsequently. 11. In all of the circumstances, I am satisfied that I should order an extension of time under s 56A of the Act up to 1 June 2022 nunc pro tunc under s 56D of the Act. The third and fourth issues – no disclosure of a reasonable cause of action 1. So far as the third issue is concerned, there is no doubt that the proposed amended statement of claim (Exhibit 2) is irregular in as much as it does not comply with the rules that I have already identified (at [38] above), and it should be struck out for that reason alone with a direction that it be re-pleaded in conformity to the rules. I accept that Mathew has had more than one opportunity to put the pleadings in order. It is also correct to say that being self-represented is not a privilege, rather it is a misfortune or at the very least, a disadvantage. However, I am of the view that a further opportunity should be allowed, even if it may be regarded as a last opportunity to bring forward a compliant pleading. It is evident that Mathew is an intelligent man of some intellectual energy and compliance of the rules should not be beyond him. It is required of him in any event. Given his personal circumstances, I would be inclined to permit a fairly generous period of six weeks for this to be done. I am not satisfied that the proposed amended statement of claim is otherwise an abuse of process for the purpose of r.14.28 UCPR. I will make an order directing that Mathew re-plead. 2. I turn then to the fourth issue which is whether the proceedings should be summarily dismissed as being clearly untenable in accordance with the principles expressed in General Steel and elsewhere. 3. While doubtless there may be other defences which will be pleaded once a compliant statement of claim is brought forward, for this purpose Ms Roberts principally relied upon the provisions of s 245G Children and Young Persons (Care and Protection Act) 1998 (NSW) ("CYP Act"). There is no question that the 14 August 2019 report (and the earlier 11 June 2019 report), was prepared in accordance with Chapter 16A CYP Act. Section 245G creates a partial immunity in favour of persons providing information under Chapter 16A. It is in the following terms: "(1) This section applies if a person, acting in good faith, provides any information in accordance with this Chapter. (2) Any such person is not liable to any civil or criminal action, or any disciplinary action, for providing the information. (3) In providing the information, the person cannot be held to have breached any code of professional etiquette or ethics or departed from any accepted standards of professional conduct." 1. It is clear from a reading of the proposed amended statement of claim (Exhibit 2) that Mathew is seeking to anticipate a defence based upon s 245G by impugning the suggestion that the forensic paediatrician was "acting in good faith". Indeed, an obvious contravention of r 14.30(1) UCPR is that the proposed amended statement of claim is replete with averments, expressed in various ways, that the statements contained in the 14 August 2019 report, which he asserts are defamatory are false and intentionally so. If nothing else, these assertions suggest that there may be a triable issue about s 245G CYP Act. 2. An absence of good faith, or malice, always presents particular difficulties of proof. It seems to me obvious that this will be a very difficult to case for Mathew to make out, even bearing in mind the onus of establishing good faith will lie upon the defendant. But, on the material available to me, I am unable to conclude that s 245G renders the case of Mathew and Olamide either clearly untenable or beset by "plain and obvious" deficiencies so that an adverse outcome for Mathew and Olamide is the inevitable result. 3. Ms Roberts also invoked the principle expressed by Dixon J (as the Chief Justices then was) in Cox v Courneaux (No 2) (1935) 52 CLR 713; [1935] HCA 48 at 720 in the following terms: "The inherent jurisdiction of the Court to stay an action as vexatious is to be exercised only when the action is clearly without foundation and when to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff. The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed. A litigant is entitled to submit for determination according to the due course of procedure, a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped. That the Court is not concluded by the manner in which the litigant formulates his case in his pleadings. It may consider the undisputed facts. Further, it is not limited to cases where there is no dispute of fact." (Citations omitted) However from his review of the material put before him, his Honour decided, notwithstanding the stringency of the test articulated, "that the court should exercise its power to stop the action summarily. The plaintiff's case is clearly hopeless". 1. While I have reservations about Mathew and Olamide's prospects of success in the defamation action - overall its "foundation" appears "slender" - I am not persuaded that the case is "clearly hopeless". Considered in isolation, a statement that necessarily implies that they or one of them was responsible for inflicting traumatic brain injury on Oluwatomi by way of "shaken baby syndrome" is clearly defamatory. At this stage, there is no evidence before me of any particular "hardship" falling on the defendant by permitting the case to proceed in the usual way. 2. Apart from s 245G CYG Act, which does not confer an absolute immunity, no specific defence has been adverted to by the defendant. Given the context in which the report of 14 August 2019 was produced, it is of course, possible that one or other of the recognised common law or statutory defences under Defamation Act 2005 (NSW) will arise. In the absence of a considered formulation of relevant defences, at least defences of qualified privilege and honest opinion spring to mind. But it would be speculation on my part to purport to summarily dismiss the proceedings on the basis of one or other of those matters, especially having regard to provisions of s 24 of the Defamation Act. 3. Notwithstanding my misgivings, I am not persuaded that the defendant has discharged the burden of establishing a case for summary dismissal. Orders 1. My orders are: 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 cause. 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 August 2024