Chen v Evans [2014] VSC 230 (15 May 2014)

Supreme Court of Victoria

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Chen v Evans [2014] VSC 230 (15 May 2014)

Last Updated: 21 May 2014

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2014 2371

GUO JING CHEN	Plaintiff
v
ROBERT FRANCIS EVANS & ORS	Defendants

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 MAY 2014
DATE OF JUDGMENT:	15 MAY 2014
CASE MAY BE CITED AS:	CHEN v EVANS
MEDIUM NEUTRAL CITATION:	[2014] VSC 230

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LIMITATION OF ACTIONS – Defamation – Application for extension of one year limitation period – Whether it was not reasonable in the circumstances for the plaintiff to have commenced action within one year from the date of publication – Plaintiff unaware of publication – Limitation period extended - Limitation of Actions Act 1958 (Vic), s 5(1AAA), 23B.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Goldblatt with Ms K Popova	Galbally & O’Bryan Lawyers
For the Defendants	Ex parte

HIS HONOUR:

1 A proposed plaintiff, Guo Jing Chen, applies today for an order that he be granted an extension until 16 May 2014 to commence a proceeding claiming damages for defamation against proposed defendants Robert Francis Evans, Google Inc LLC and Google Australia Pty Ltd.

2 The application is supported by Mr Chen’s affidavit sworn 15 May 2014.

3 Mr Chen deposes that he is the sole director and shareholder of C & K Group Pty Ltd, which owns a supermarket situated in Centre Road, Bentleigh. C & K Group Pty Ltd and Mr Chen were convicted and fined for breaches of the Food Act 1984 on about 16 May 2011. On 18 May 2011, an article or comment that concerned the plaintiff, Mr Chen, and his company C & K Group Pty Ltd was posted on a blog entitled, "Aussie Criminals and Crooks" (the article). It is this publication that the plaintiff complains is defamatory of him.

4 The plaintiff is also a director of C & K Group Investments Pty Ltd, which is a property developer. C & K Group Investments is currently undertaking a development in Chadstone, and, on 16 April 2014, Mr Chen met with the selling agent for those apartments. The selling agent informed him that a prospective buyer was not proceeding with a sale, as an internet search of Mr Chen's name had disclosed the Aussie Criminals and Crooks article. It was during that conversation that Mr Chen first became aware of the publication of the article, and he then saw the website, for the first time, on the estate agent's laptop computer.

5 Mr Chen found the article greatly distressing. Mr Chen had not heard of the Aussie Criminals and Crooks' website and had not ever conducted a web search of his own name. He described his skills in searching the internet as limited, and stated that as he is busy with his work, he has little time to use the internet, and generally only does so for banking purposes, or to view properties online. Mr Chen states that he was not, and had no reason to be, aware of the article.

6 Mr Chen's affidavit goes on to explain his response to the article, which included entering into correspondence with the website and with Google, making enquiries about the proprietor of the domain name, Mr Evans, and in taking legal advice.

7 Section 5(1AAA) of the Limitation of Actions Act 1958 states that an action for defamation must not be brought after the expiration of one year from the date of publication of the matter complained of. Counsel submitted that the exhibited material suggests that the date of article’s publication would be either 18 or 19 May 2011. It would follow that the limitation period of one year expired almost two years ago.

8 Section 23B of the Limitation of Actions Act provides that a person claiming to have a cause of action for defamation may apply to a court for an order extending the limitation period for the cause of action. Section 23B(2) states:

A court, on an application under subsection (1), 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 5(1AAA) to a period of up to 3 years from the date of the publication.

If able to satisfy the court in the terms required by s 23B(2), the window of opportunity for the plaintiff to be able to commence this proceeding is about to close.

9 The principles to be applied on an application for an extension of time under s 23B were stated by Beach J (as his Honour then was) in Casley v Australian Broadcasting Corporation:[1]

1. First, under s 23B the burden is on the applicant for an extension of time to point to circumstances which make it not reasonable in the circumstances to have commenced a proceeding within one year from the date of the publication.
2. Secondly, the circumstances that might give rise to an extension are left at large.

100. Thirdly, the test posed by s 23B(2) is an objective one. It is not satisfied by showing that the applicant believed that he or she had good reason not to sue.

4. Fourthly, if the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period, then it must extend the limitation period. Unlike other extension of time provisions, there is no discretion whether or not to extend time. However, a discretion exists as to the length of the extension to be granted which, in any event, may not exceed three years from the date of the defamatory publication.
5. Fifthly, the section requires more of an applicant than to show that it would have been reasonable not to commence a proceeding until after the one year period had expired: the court must be satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period.
6. Sixthly, the circumstances must be sufficiently compelling to satisfy the court that it was not reasonable in the circumstances to commence a proceeding within the one year period the law ordinarily requires litigants to commence proceedings.
7. Seventhly, s 23B of the Act proceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence a proceeding to vindicate his or her legal rights in accordance with that time limit.

His Honour restated these principles in Trkulja v Dobrijevic.^[2] In each of those cases, an extension of the limitation period was refused.

10 Casley sought leave to appeal Beach J’s decision, which the Court of Appeal refused.[3] Hansen JA, with whom Robson AJA agreed, set out the seven propositions identified by Beach J on his analysis of the cases. Although the Court of Appeal was invited to consider the scope and operation of s 23B of the Limitation of Actions Act, an analysis which it had not previously undertaken, the court did not accept that invitation. Nevertheless, no criticism or adverse comment was directed towards either the reasoning of, or the propositions stated by, the trial judge. I would add that the Defamation Act is part of uniform national legislation. The provisions for extension of the limitation period in defamation actions have been considered by the Queensland Court of Appeal in three cases, Noonan v MacLennan,[4] Pingel v Toowoomba Newspapers Pty Ltd[5] and Jamieson v Chiropractic Board of Australia.[6]

11 Bearing in mind the principles that now prevail in relation to the common law of Australia and the importance of the decisions of intermediate Courts of Appeal in other state jurisdictions concerning national legislation, I am satisfied that it is appropriate in the circumstances to apply the principles identified by Beach J in Casley v Australian Broadcasting Corporation.

12 In the present circumstances, the real issue that arises is whether the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period from the date of the publication. If the court is so satisfied, then it must extend the limitation period to a period of up to 3 years from the date of publication.

13 It has been recognised in the cases that a plaintiff who is unaware of the publication of the defamation will satisfy that test.[7] I accept the plaintiff’s explanation in his affidavit that he was unaware of the article until about 6 weeks ago. It is reasonable to expect that not all persons are familiar with all of the types of material that may be found on the internet or that one can search for it. I think it unreasonable to expect that any individual should search the world wide web for defamatory material in order to vindicate his or her rights before a limitation period expires.

14 Counsel for the applicant raised with me that in previous cases, applications under s 23 appears to have been made nunc pro tunc on notice to the defendant. Mr Chen is a person claiming to have a cause of action for defamation (the opening words of s 23B(1)) and I see no impediment to such application being made ex parte in the present circumstances. I am assured by counsel that there are no other relevant circumstances that I should consider before making an ex parte order. I am satisfied that in the circumstances that are disclosed by Mr Chen's affidavit, it is just and convenient that this application should be dealt with on an ex parte basis.

15 It may be that the defendants have other information that would affect the question of whether the test for the extension of the limitation period is properly satisfied. The plaintiff suggested that liberty to apply should be reserved to the prospective defendants, and I agree that that is an appropriate course. Liberty will be reserved to the defendants or either of them for 28 days after an appearance is filed. It may also be the case that dealings between the parties, particularly with the proposed second and third defendants, may affect the ultimate course of this proceeding.

16 Taking all of those matters into account, the orders that I will make are -

1. The plaintiff is granted an extension of time until 16 May 2014 to commence proceedings substantially in the form of the Writ and Statement of Claim that is exhibit “GJC-7” to the affidavit of Guo Jing Chen sworn 15 May 2014 against the defendants, Robert Francis Evans, Google Inc LLC and Google Australia Pty Ltd.
2. Liberty to apply to Judge in Charge of the Major Torts List is reserved to the defendants or any of them, once served, for a period of 28 days after an appearance is filed.

3. The costs of this application are costs in the cause.

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^[1] [2013] VSC 251, at [28]

^[2] [2013] VSC 261, at [20] – [21].

^[3] Casley v Australian Broadcasting Corporation [2013] VSCA 182.

^[4] [2010] QCA 50; [2010] 2 Qd R 537.

^[5] [2010] QCA 175.

^[6] [2011] QCA 056.

^[7] Jamieson v Chiropractic Board of Australia [2011] QCA, at [21]-[22]; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175, at [56]; Rayney v the State of Western Australia [No 3] [2010] WASC 83, at [41]; Ahmed v. Harbour Radio Pty Ltd [2010] NSWSC 676, at [52].