Foley v Rosier [2014] NSWDC 92

District Court New South Wales

Medium Neutral Citation: Foley v Rosier [2014] NSWDC 92 Hearing dates: 4 and 11 July 2014 Decision date: 14 July 2014 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Plaintiff's applications for extension of time to serve the statement of claim, leave to amend and for transfer to the Local Court refused. (2) Statement of claim dismissed. (3) No order as to costs. Catchwords: TORT - defamation - solicitor commences proceedings against former client following lodgment of a complaint at the Office of the Legal Services Commissioner - proceedings commenced after expiry of limitation period and never served - plaintiff receives advice from the Office of the Legal Services Commissioner that the defendant's complaints were published on occasions protected by absolute privilege pursuant to s 27(2) Defamation Act 2005 (NSW) - plaintiff applies for extension of time to serve statement of claim, transfer of proceedings to the Local Court and leave to amend - complex alternate claims for injurious falsehood and misleading and deceptive conduct proposed - whether extension of time should be granted - whether leave to amend should be granted - whether proceedings suitable for transfer to the Local Court - applications for extension of time, leave to amend and transfer to Local Court refused - statement of claim dismissed Legislation Cited: Australian Consumer Law (Cth), Part 2-1 Civil Procedure Act 2005 (NSW), ss 56 - 62, 64, 65, 146(2), 148 and 149 Defamation Act 2005 (NSW), s 27 and Schedule 1 clauses 15(1)(a) and 18 Limitation Act 1969 (NSW), s 14B Uniform Civil Procedure Rules 2005 (NSW), rr 1.2, 6.2(4)(b)(i), 15.19 and 19.1 Cases Cited: Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 Ballina Shire Council v Ringland (1994) 33 NSWLR 680 Crux - Southern Cross University Post Graduate Association Inc v Watts & Ors [2013] NSWDC 254 Energetech Australia Pty Ltd v Sides Engineering Pty Ltd [2005] NSWSC 1143 Flanagan v Urban Publishing Pty Ltd [2012] NSWDC 238 Lucire v Parmegiani [2012] NSWCA 86 Lucire v Parmegiani (2010) 10 DCLR (NSW) 364 Merman Pty Ltd v Cockburn Cement Ltd (1988) 84 ALR 521 Munn v Tunks [2013] NSWSC 1263 Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924 Sleeman v Tuloch Pty Ltd [2013] NSWDC 43 Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 Weston (in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liq)) v Publishing & Broadcasting Ltd (2012) 88 ACSR 80 Texts Cited: - Category: Interlocutory applications Parties: Plaintiff: Michael David Foley Defendant: Caroline Margot Rosier Representation: Plaintiff: In person Defendant: No appearance Plaintiff: In person Defendant: No appearance File Number(s): 2014/104522 Publication restriction: None