District Court New South Wales Medium Neutral Citation: Nicolson v Florida [2016] NSWDC 260 Hearing dates: 20 October 2016 Date of orders: 20 October 2016 Decision date: 20 October 2016 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Pursuant s 56A Limitation Act 1969 (NSW), extend time for the commencement of these proceedings to 29 July 2016. (2) Costs to be costs in the cause. (3) Plaintiff's proposed amended statement of claim to be served on the defendant within 7 days. (4) Matter stood over to the Defamation List on 3 November 2016 for further directions and/or argument if necessary. Catchwords: TORT – defamation – application for extension of time to commence proceedings – plaintiff unaware of publication until after expiry of limitation period – defendant neither consents to nor opposes the orders sought – extension of time granted Legislation Cited: Limitation Act 1969 (NSW), s 56A Cases Cited: Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 Cassar v Network Ten Pty Ltd [2012] NSWSC 680 Rayney v State of Western Australia (No 3) [2010] WASC 83 Sun v Hojunara International Group (No 2) [2013] NSWSC 1050 Category: Procedural and other rulings Parties: Plaintiff: Geoffrey Christopher Nicolson Defendant: Robert Christian Florida Representation: Counsel: Plaintiff: Mr B Goldsmith (solicitor) Defendant: Ms E Hitchen (solicitor) Solicitors: Plaintiff: Goldsmiths Lawyers Defendant: Turner Freeman Lawyers File Number(s): 2016/229034 Publication restriction: None Judgment 1. The plaintiff, by Notice of Motion filed on 16 September 2016, seeks an order pursuant to s 56A Limitation Act 1969 (NSW) for an extension of the limitation period to commence proceedings for defamation under the Defamation Act 2005 (NSW). 2. The matters complained of are four oral publications made over a period commencing in March 2014; the final publication was made on a date between April and September 2014. 3. The plaintiff relies upon the factual matters set out in his affidavit of 29 July 2016, the contents of which are set out below. 4. The defendant, who is legally represented and has been served with the notice of motion and supporting affidavit, takes the position that he neither consents to nor opposes the relief sought. The circumstances in which the matters complained of came to the plaintiff's attention 1. Mr Nicolson, the plaintiff, sets out in his affidavit that defendant is his relative by marriage and, like him, is an electrician by trade. They both belonged to the same church. After some work-related disputes, the plaintiff decided, in early 2013, that his company would no longer retain the defendant as a sub-contractor or refer work to him. 2. In May 2015 the plaintiff was invited to nominate himself as a board member of a school. However, after he did so, he received a telephone call from the Chairman of the Board, requesting him to withdraw his nomination. The basis of his request was that the Chairman was aware of allegations that the plaintiff was alleged to have engaged in certain inappropriate behaviour ("the allegations"). The Chairman said that the source of these allegations was a person within the church the plaintiff attended, but gave no further particulars. 3. The plaintiff, who was stunned by these revelations, immediately asked the Pastor of the church to undertake an investigation into both himself and the allegations. He was informed, on 22 September 2015, that this investigation would proceed no further, because the reports obtained indicated that the allegations were groundless. He was never informed of the nature or content of these reports, or of the source of the allegations. 4. This lack of information caused the plaintiff to make his own inquiries, but he had great difficulty finding out who had made these allegations, he says, because the Church was very active in the "small community" (paragraph 17 of his affidavit) in which he lived. 5. In about March 2016 a person he contacted suggested he meet with a Mr Mark Chircop, on the basis that Mr Chircop had told that person about these allegations. The plaintiff met with Mr Chircop on 21 March 2016. Mr Chircop identified the defendant as the persons who had made the allegations about the plaintiff, saying the statements were made in about March 2014. This was the first direct information the plaintiff had of what had been said, when and by whom. 6. The plaintiff needed further information, and made further inquiries. On 19 May 2016 he met a Mr Andrew Dixon. Mr Dixon told him that he had also had conversations with the defendant in 2014, during which the defendant made the same allegations. 7. Prior to these persons telling the plaintiff that the defendant had made these statements, he had had no information that the defendant had made these allegations. He did not have any suspicion or belief either (paragraph 19). 8. After the plaintiff obtained this second source of information as to who had made the allegations about him, he made further inquiries and identified a total of four publications, all made between March and September 2014. He then sought legal advice. He consulted Mr Goldsmith, who filed the statement of claim initiating these proceedings on his behalf, on 29 July 2016. The legislation and relevant principles 1. Section 56A Limitation Act 1969 (NSW) provides: "56A Extension of limitation period by court (1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action. (2) 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 section 14B to a period of up to 3 years running from the date of the publication. (3) A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2)." 1. The "not reasonable in the circumstances" test in s 56A has been described by Malcolm CJ in Rayney v State of Western Australia (No 3) [2010] WASC 83 as "a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances" (at [41]). 2. There is, however, one exception which is generally accepted to amount to "unusual circumstances", and that is where the plaintiff is unaware of the publication until after the expiry of the one-year limitation period. Simpson J, in Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [52], specifically notes that circumstances where the plaintiff is "unaware of the publication" may be an example of a factual situation satisfying this test. 3. In Sun v Hojunara International Group (No 2) [2013] NSWSC 1050, Campbell J summarised Hislop J's principles concerning the criteria for s 56A as being the following six factors: 1. The burden that must be discharged is to establish 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; 2. The onus rests with the plaintiff; 3. The test is objective; 4. It is a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances; 5. If the plaintiff proves the fact then the court is obliged to extend time. Extension in these circumstances is mandatory; and 6. Section 56A limits the period of extension to an extension "of up to three years running from the date of publication". This has been described as involving the exercise of discretion in the sense of involving a normative judgment. 1. Campbell J goes on to note that, while the test is an objective one, a consideration of the circumstances required by s 56A includes an inquiry into the plaintiff's reasons for not commencing proceedings within the limitation period, which may involve consideration of some subjective aspects of the case. 2. In Cassar v Network Ten Pty Ltd [2012] NSWSC 680, Hislop J stated that once the plaintiff can satisfy the relevant criteria, the grant of an extension is not a matter for the discretion of the court but is mandatory. It is obvious that it would not be "reasonable" in the circumstances for the plaintiff to have commenced an action in relation to a publication he knew nothing about and in those circumstances the criteria are satisfied. 3. I also note that, while the principles expressed in s 56A mean that an extension of time is mandatory, the facts must be proved to the satisfaction of the court in the same type of evaluative exercise required for the decision of any contested issue of fact. In cases such as the present, however, there are effectively no facts in dispute, in that there is no challenge to the plaintiff's claim of lack of knowledge until May 2016 of the publications. 4. In the circumstances set out above, the test under s 56A is satisfied, and the plaintiff's application for an extension of time is granted. 5. The parties agreed that costs would be costs in the cause. The defendant has raised issues in relation to the imputations and I have made orders as sought by both parties to enable amendment of the statement of claim and a date for argument if necessary. Orders 1. Pursuant s 56A Limitation Act 1969 (NSW), extend time for the commencement of these proceedings to 29 July 2016. 2. Costs to be costs in the cause. 3. Plaintiff's proposed amended statement of claim to be served on the defendant within 7 days. 4. Matter stood over to the Defamation List on 3 November 2016 for further directions and/or argument if necessary. ********** 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: 21 October 2016