Jay v Petrikas [2019] NSWDC 707

District Court New South Wales

Medium Neutral Citation: Jay v Petrikas [2019] NSWDC 707 Hearing dates: 31 October 2019 Date of orders: 28 November 2019 Decision date: 28 November 2019 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) An order granting leave to the plaintiffs to amend the motion filed 6 September 2019. (2) An order pursuant to s 63(2) of the Civil Procedure Act 2005 (NSW) that the Amended Statement of Claim lodged for filing on 30 August 2019 be treated as having been duly filed by the District Court Registry at Sydney on that date (30 August 2019). (3) The plaintiffs' application pursuant to s 56A(2) of the Limitation Act 1969 (NSW) extending the limitation period provided by s 14B of the Defamation Act 2005 (NSW) so as to commence a claim in defamation against Ms Karen Hodges as set out in the Amended Statement of Claim filed in proceedings No. 2019/72815 is dismissed. (4) Cost reserved with liberty to apply. (5) Liberty to the parties to bring in Short Minutes of Order reflecting a timetable for the conduct of these proceedings in 7 days. (6) Exhibits retained for 28 days. Catchwords: TORT – defamation – application to pursuant to s 56A(2) Limitation Act 1969 (NSW) to extend the limitation period provided by s 14B of the Defamation Act 2005 (NSW) – limitation period expired on 6 September 2016 – amended statement of claim filed without leave on 30 August 2019 and rejected by the Registry – whether orders should be made for the irregularly filed pleading under ss 16 and 63(2) Civil Procedure Act 2005 (NSW) – whether an extension under s 56A should be granted – whether the court should extend the limitation period to the date the plaintiffs filed the amended statement of claim commencing defamation proceedings or is required to choose the date to which the limitation period is extended – whether there were unexplained delays at a time when the plaintiffs were aware of all the matters related to the defamation – whether plaintiffs' knowledge of the likely contents of the matter complained of sufficient – plaintiffs warn of an application for preliminary discovery but fail to seek orders - whether preliminary discovery an obvious step – "not reasonable" in the circumstances for the plaintiffs to have delayed past October 2018 after their solicitors had written to the defendants' solicitors on 8 June 2018 showing an appreciation of their clients' entitlements to bring an application for preliminary discovery – application for extension of time refused Legislation Cited: Civil Procedure Act 2005 (NSW), ss 16 and 63 Defamation Act 2005 (NSW), s 14B Government Information (Public Access) Act 2009 (NSW) Limitation Act 1969 (NSW), s 56A Uniform Civil Procedure Rules 2005 (NSW), r 5.3 Cases Cited: AB – CD (No 2) [2019] WASC 301 Bahonko v Sterjov & Ors [2007] FCA 1244 Bahonko v Sterjov [2008] FCAFC 30 Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304 Buswell v Carles [2012] WASC 509 Casley v Australian Broadcasting Corporation [2013] VSCA 182 Clark v Ibrahim [2014] VSC 30 El-Mouelhy v QSociety of Australia Inc (No 4) [2015] NSWSC 1816 Gray v Avadis [2003] EWHC 130 (QB) Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498 Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506 Hearne v Street (2008) 235 CLR 125 Houda v State of New South Wales [2012] NSWSC 1036 Johnston v Vintage Developments Pty Ltd [2006] FCAFC 171 Kaiser v George Laurens (NSW( Pty Ltd [1982] 1 NSWLR 294 Lakaev v Denny [2010] NSWSC 1480 Murtaough v Bentham [2004] NSWSC 753 Noonan v MacLennan (2010) 2 Qd R 537 Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 Rayney v The State of Western Australia (No 3) [2010] WASC 83 Richards v Naum [1964] 1 QB 620 Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611 Slaveska v State of Victoria and Others [2015] VSCA 140 Spedding v Dailymail.com Australia Pty Ltd [2016] NSWSC 1963 State of Queensland v O'Keefe [2016] QCA 135 Szymczak v Balijepalli [2019] FCA 203 Szymczak v Balijepalli (No 2) [2019] FCA 1093 Van Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953 Wookey v Quigley (No 2) [2010] WASC 209 Zaghloul v Woodside Energy Limited (No 8) [2019] FCA 971 Category: Procedural and other rulings Parties: First Plaintiff: Graeme Jay Second Plaintiff: John Peters First Defendant: Chris Petrikas Second Defendant: David Ryan Third Defendant: Ian Wedge Representation: Counsel: Plaintiff: Mr R Rasmussen Defendants: Mr M Richardson