Clarke v Herrick [2020] NSWCA 71

Clarke v Herrick [2020] NSWCA 71

Leave to appeal was refused because Ms Clarke's amended statement of claim sued only on the publication of the WCIN Form on 5 September 2014, which was statute barred under ss 14B and 56A of the Limitation Act 1969 (NSW). Her later awareness of the form did not affect the running of time, no non-time-barred republication was pleaded or argued before the primary judge, and the later publications she identified were in any event subject to absolute or qualified privilege. The primary judge did not err or deny procedural fairness by determining the summary dismissal application on the basis of the amended pleading.

Jurisdiction
Australia
Judgment Date
21 April 2020
Procedural Posture
Application for Leave to Appeal in Defamation Proceedings / Court of Appeal Application for Extension of Time and Leave to Appeal From Summary Dismissal, With Notice of Motion for Pro Bono Referral and Mediation
Outcome
Time to file the summons seeking leave to appeal was extended, but leave to appeal was refused and the notice of motion was dismissed.
Legal Topics
['leave to Appeal' 'summary Dismissal' 'statute Barred Defamation Claim' 'absolute Privilege' 'qualified Privilege' 'pro Bono Referral' 'procedural Fairness']
['defamation' 'civil Procedure' 'limitation of Actions'] ['leave to Appeal' 'summary Dismissal' 'statute Barred Defamation Claim' 'absolute Privilege' 'qualified Privilege' 'pro Bono Referral' 'procedural Fairness']

Case Brief

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Procedural Posture

Application for Leave to Appeal in Defamation Proceedings / Court of Appeal Application for Extension of Time and Leave to Appeal From Summary Dismissal, With Notice of Motion for Pro Bono Referral and Mediation

Legal Issues

  1. 1 ['Whether time should be extended for Ms Clarke to file the summons seeking leave to appeal.' "Whether leave to appeal should be granted from the District Court's summary dismissal of Ms Clarke's defamation claim as statute barred." 'Whether the primary judge erred or acted with procedural unfairness by determining the summary dismissal application on the basis of the amended statement of claim.' 'Whether alleged republications of the WCIN Form avoided the limitation problem or were defeated by absolute or qualified privilege.' 'Whether Ms Clarke should be referred for legal assistance under Uniform Civil Procedure Rules 2005 (NSW), r 7.36.']

Ratio Decidendi

Leave to appeal was refused because Ms Clarke's amended statement of claim sued only on the publication of the WCIN Form on 5 September 2014, which was statute barred under ss 14B and 56A of the Limitation Act 1969 (NSW). Her later awareness of the form did not affect the running of time, no non-time-barred republication was pleaded or argued before the primary judge, and the later publications she identified were in any event subject to absolute or qualified privilege. The primary judge did not err or deny procedural fairness by determining the summary dismissal application on the basis of the amended pleading.

Court Disposition

Time to file the summons seeking leave to appeal was extended, but leave to appeal was refused and the notice of motion was dismissed.

Orders

  • ['Extend the time for Ms Clarke to file the summons seeking leave to appeal to 11 November 2019.' 'Dismiss the summons seeking leave to appeal.' 'Dismiss the notice of motion of 10 January 2020.' "Order the applicant pay the respondents' costs of that summons except for: the costs of Ms Clarke's notice of motion...