New South Wales Supreme Court CITATION : Carr v Reynolds Porter Chamberlain [2007] NSWSC 21 HEARING DATE(S) : 16 November 2006, 30 January 2007 JUDGMENT DATE : 30 January 2007 JURISDICTION : Common Law Division Defamation List JUDGMENT OF : Studdert J DECISION : On the application by RPC filed 2 June 2006: (1) The application is dismissed; (2) The plaintiff, Malcolm Douglas Carr, is to pay the costs of RPC incurred in relation to the application up to and including 16 November 2006. The application by Malcolm Douglas Carr under the Limitation Act: (1) Order that time for commencing proceedings based on the publication of the matters complained of that occurred on 6 October 2004 and 10 October 2004 to Minter Ellison is extended to 11 April 2006; (2) Order that the plaintiff pay the costs of RPC on the plaintiff's application for the extension of time. LEGISLATION CITED : Limitation Act, s 56A CASES CITED : Jameel v Dow Jones & Co. Inc. (2005) QB 946 PARTIES : Malcolm Douglas Carr (Plaintiff) Timothy Richard Anderson t/as Reynolds Porter Chamberlain (Defendants) FILE NUMBER(S) : SC 20121/06 COUNSEL : T. Molomby SC/ Q. Nguyen (Plaintiff) Dr M.J. Collins (Defendants) SOLICITORS : R.D. Black & Associates (Plaintiff) Minter Ellison (Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST STUDDERT J Tuesday 30 January 2007 20121/06 MALCOLM DOUGLAS CARR v TIMOTHY RICHARD ANDERSON t/as REYNOLDS PORTER CHAMBERLAIN JUDGMENT 1 HIS HONOUR: There were two applications listed for hearing before the Court yesterday: (i) the application of the plaintiff in the cause, Malcolm Douglas Carr, pursuant to the Limitation Act ; (ii) the application by the defendants in the cause, Timothy Anderson and others, trading as Reynolds Porter Chamberlain (RPC), seeking a stay of proceedings in the cause. 2 Both applications came before the Court on 16 November 2006 and were adjourned on that date after the plaintiff sought leave to amend the statement of claim so as to limit his proceedings to publications in Australia and New Zealand. 3 It is appropriate now to deal discretely with the applications. The application by RPC for a stay of proceedings 4 When this application was commenced the statement of claim relied upon publications by RPC in its newsletter in the United Kingdom as well as in New South Wales and New Zealand. There was evidence placed before the Court of 615 downloads in the United Kingdom and only seven downloads in New South Wales and one download in New Zealand. Of the downloads in New South Wales, proceedings arising from a number of them would have been statute barred. 5 The hearing of the application by RPC commenced with RPC relying upon affidavit evidence to prove the places of publication and it was contended that this court was a forum non conveniens. Dr Collins submitted that any proceedings arising from the case note published by it should be brought in the United Kingdom. After the luncheon adjournment on 16 November 2006 Mr Molomby of Senior Counsel, appearing for the plaintiff in the cause, made the amendment application to limit the cause to publications in New South Wales and an undertaking was noted that the plaintiff would not proceed elsewhere on a claim in relation to the publication in the United Kingdom of the matter complained of in the cause. That amendment having been granted on the undertaking noted, the application by RPC was adjourned until yesterday to afford to Dr Collins the opportunity of seeking instructions on the future conduct of that application. 6 Yesterday the Court was informed that RPC no longer pursued the application for the relief sought but Dr Collins submitted that the plaintiff should bear the costs incurred on the application commenced by RPC. Dr Collins submitted that the costs were considerable and were properly incurred having regard to the manner in which the statement of claim was expressed prior to the amendment application on 16 November 2006. 7 Mr Molomby very properly acknowledged that RPC was entitled to costs on its application except for costs referable to the argument that the proceedings to the extent that they related to publications in New South Wales were an abuse of process. In his written submissions Dr Collins had referred to the decision in Jameel v Dow Jones & Co. Inc. (2005) QB 946. In response Mr Molomby had argued that the plaintiff enjoyed a reputation in New South Wales where he carries on practice and his interest in vindicating that reputation is in this State. Hence it was contended the proceedings in New South Wales as originally pleaded should not be regarded as an abuse of process and that any application for costs should be limited to costs incurred by RPC on the forum non conveniens issue. 8 I am not attracted by Mr Molomby's submission that it would be appropriate to limit the costs order in such a manner. The substance of the application by RPC was that the overwhelming majority of publications of the news item relied upon were in the United Kingdom. Hence, it was contended that the forum non conveniens argument must prevail, and in the circumstances it was also contended as a second, but supplementary, submission that to maintain proceedings in New South Wales amounted to an abuse of process. Mr Molomby's amendment application on 16 November 2006 acknowledged the force of that contention. 9 In the circumstances it seems to me to be just that the plaintiff should pay the costs incurred by RPC on the application by RPC up to and including 16 November 2006, and I propose therefore to make an order to that effect. The application under the Limitation Act 10 For the purposes of this application the following facts were agreed upon: (i) the matter complained of was loaded onto the relevant website in February 2003; (ii) the proceedings were commenced by the plaintiff on 11 April 2006; (iii) there were two downloads of the matter complained of by Minter Ellison, namely on 6 October 2004 and on 10 October 2004; (iv) there was a download in New Zealand on 9 November 2005; (v) there were downloads by Gregory Williamson on 4 April 2006, those downloads being three in number; (vi) the plaintiff did not know of the existence of the matter complained of on the website or any publication of it until October 2005. 11 Mr Molomby sought an order which he expressed in these terms: "That the limitation period be extended to 6 October 2004 so as to extend to the publications to Minter Ellison on that date and on 10 October 2004." 12 Section 56A of the Limitation Act was amended with effect from 1 January 2006 but prior to that amendment, and for relevant purposes, s 56A was in the terms following: "(1) Except as provided by subsection (2), this section applies to a cause of action based on the publication of defamatory matter that accrues after the commencement of this section. (2) If: (a) a cause of action based on the publication of defamatory matter that accrues after the commencement of this section is one of two or more causes of action in proceedings commenced by the plaintiff, and (b) each cause of action in the proceedings accrues because of the publication of the same, or substantially the same, matter on separate occasions (whether by the same defendant or another defendant), and (c) one or more of the other causes of action in the proceedings accrued before the commencement of this section, then this Act as in force immediately before the commencement of this section continues to apply to each cause of action regardless of when it accrues. (3) A person claiming to have a cause of action to which this section applies may apply to the court for an order extending the limitation period for the cause of action. (4) After hearing such of the persons likely to be affected by the application as it sees fit, the court may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines. However, the court cannot extend the period beyond 3 years running from the date on which the defamatory matter concerned was published." 13 It is to be observed that s 56A(4) empowers the Court in the exercise of its discretion to extend the limitation period "if it decides that it is just and reasonable to do so". 14 The relevant publications for the purposes of this application are the two downloads by Minter Ellison, being those downloads on 6 October 2004 and 10 October 2004. The later download in New Zealand, on 9 November 2005, was less than six months prior to the commencement of the statement of claim and then the four downloads by Gregory Williamson were, of course, after the commencement of the proceedings. 15 Mr Molomby submitted that it was just and reasonable to extend the limitation period so as to permit the pursuit of a claim for the publications to Minter Ellison on 6 October and 10 October 2004 for the reason that the plaintiff was unaware of the existence of the matter complained of at that time and he did not become aware of its existence or any publication until October 2005. 16 In written submissions dated 25 January 2007 Dr Collins adverted in para 22 to prejudice that would be occasioned to RPC if the plaintiff was given an extension of time to pursue a claim which did not identify the particular publication. However, Mr Molomby very properly recognised that it was appropriate to limit the extension of the limitation period to identified publications, namely those to Minter Ellison on 6 October 2004 and 10 October 2004. In these circumstances Dr Collins did not oppose the granting of the relief sought, and I am satisfied that it is just and reasonable to make an appropriate order under the Limitation Act. 17 As to the costs of the plaintiff's application, the plaintiff seeks an indulgence and it was not unreasonable of RPC to oppose the Limitation Act application in the manner in which it was expressed in the plaintiff's notice of motion. Hence I conclude it is just that RPC should recover its costs on that application. Formal orders 18 The formal orders of the Court are these: On the application by RPC filed 2 June 2006: (1) The application is dismissed; (2) The plaintiff, Malcolm Douglas Carr, is to pay the costs of RPC incurred in relation to the application up to and including 16 November 2006. The application by Malcolm Douglas Carr under the Limitation Act : (1) Order that time for commencing proceedings based on the publication of the matters complained of that occurred on 6 October 2004 and 10 October 2004 to Minter Ellison is extended to 11 April 2006; (2) Order that the plaintiff pay the costs of RPC on the plaintiff's application for the extension of time. ********** 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.