Do v Kolsumdet Pty Ltd [2022] FCA 1057

Do v Kolsumdet Pty Ltd [2022] FCA 1057

In the particular circumstances, the applicants had made inquiries directed to ascertaining who was responsible for the publications, Ms To was not identified by those inquiries and only became known from the defence served after the limitation period expired. The Court inferred that an inquiry during the limitation period would likely have received a similar refusal absent threatened or actual preliminary discovery, and held that preliminary discovery was not required as a matter of course in this online publication context. It was therefore not reasonable for the applicants to have initially joined Ms To within the limitation period, so the extension and leave to amend were granted.

Jurisdiction
Australia
Judgment Date
07 September 2022
Procedural Posture
Defamation Proceedings / Interlocutory Application for Extension of Limitation Period Under S 56 a of the Limitation Act 1969 (nsw) and for Leave to File and Serve Amended Statement of Claim and Originating Application to Join a Prospective Sixth Respondent
Outcome
Application granted; extension of limitation period and leave to amend granted, with costs orders.
Legal Topics
['extension of Limitation Period' 'joinder of Prospective Respondent' 'amendment of Originating Application and Statement of Claim' 'online Publications' 'preliminary Discovery']
['practice and Procedure' 'defamation' 'limitation of Actions'] ['extension of Limitation Period' 'joinder of Prospective Respondent' 'amendment of Originating Application and Statement of Claim' 'online Publications' 'preliminary Discovery']

Case Brief

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Procedural Posture

Defamation Proceedings / Interlocutory Application for Extension of Limitation Period Under S 56 a of the Limitation Act 1969 (nsw) and for Leave to File and Serve Amended Statement of Claim and Originating Application to Join a Prospective Sixth Respondent

Legal Issues

  1. 1 ['Whether the applicants should be granted an extension of the one-year limitation period under s 14B of the Limitation Act 1969 (NSW) to commence defamation proceedings against Ms To pursuant to s 56A of that Act.' 'Whether it was not reasonable for the applicants to have initially joined Ms To within the limitation period.' 'Whether leave should be granted to file and serve an amended statement of claim and originating application joining Ms To as a sixth respondent.']

Ratio Decidendi

In the particular circumstances, the applicants had made inquiries directed to ascertaining who was responsible for the publications, Ms To was not identified by those inquiries and only became known from the defence served after the limitation period expired. The Court inferred that an inquiry during the limitation period would likely have received a similar refusal absent threatened or actual preliminary discovery, and held that preliminary discovery was not required as a matter of course in this online publication context. It was therefore not reasonable for the applicants to have initially joined Ms To within the limitation period, so the extension and leave to amend were granted.

Court Disposition

Application granted; extension of limitation period and leave to amend granted, with costs orders.

Orders

  • ['The applicants be granted an extension of the limitation period in which to commence proceedings against Ms Hahn To, pursuant to s 56A of the Limitation Act 1969 (NSW), up to and including 4.00 pm on Friday, 9 September 2022.' "The applicants have leave to file and serve an amended statement of claim and...