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District Court 20 February 2025

Kelly v UNSW

[2025] NSWDC 24

Other
TORT ALL DEFAMATION CLAIMS STRUCK OUT

Citation: Kelly v UNSW [2025] NSWDC 24
Court: District Court of NSW
Date: 20 February 2025
Judge: Gibson DCJ

Background

The plaintiff, a self-represented university student, brought proceedings against the University of New South Wales (first defendant), a university security company (second defendant), and an individual report author (third defendant). His claims spanned defamation, assault and battery, deprivation of liberty, and intimidation. The defamation claims were based on thirteen publications made between July 2019 and August 2022, many of which arose from a complaints process the university had conducted regarding the plaintiff's conduct on campus.

The plaintiff had previously brought related defamation proceedings in the District Court on two earlier occasions, both of which were decided against him. Those prior proceedings were relevant to the court's assessment of his familiarity with defamation pleading requirements and limitation rules.

The first and third defendants applied for summary dismissal of all defamation claims and one of the intimidation claims. The grounds included non-compliance with the statutory concerns notice procedure, expiry of limitation periods, and inadequate pleading of the intimidation tort.

  • Whether the plaintiff had served valid concerns notices under s 12A of the Defamation Act 2005 (NSW) for publications made on or after 1 July 2021
  • Whether the limitation period had expired irrevocably under ss 14B and 63 of the Limitation Act 1969 (NSW) for publications more than three years old
  • Whether the court should grant an extension of time to bring any of the thirteen defamation claims out of time
  • Whether the defamation claim against the third defendant was an abuse of process under UCPR r 13.4
  • Whether the intimidation claims were adequately pleaded

Decision

Gibson DCJ dismissed all thirteen defamation claims. For publications made on or after 1 July 2021, the plaintiff had not complied with the concerns notice procedure required by s 12A of the Defamation Act 2005. The concerns notice regime, introduced as part of the 2021 amendments, is a mandatory precondition to bringing a defamation claim for publications from that date; without a valid notice, those claims could not proceed.

For all defamation claims (including those predating the 2021 amendments), the court declined to extend time. All thirteen publications had been made more than twelve months before proceedings were commenced. Her Honour assessed whether it was proper in the circumstances to extend time, applying the established principles governing such applications, and concluded that an extension was not warranted in respect of any claim. The plaintiff's prior litigation history and familiarity with defamation law weighed against him on that question.

The intimidation claims were found to be inadequately pleaded, as they did not set out the elements of the tort. Rather than striking them out finally, her Honour granted leave to replead, noting the first defendant had accepted this as appropriate relief.

The court also directed the plaintiff to file a Statement of Particulars accompanying any amended statement of claim. The existing pleadings contained no particulars of the claimed "injury to health," economic loss, or aggravated damages, which was a procedural deficiency her Honour flagged for rectification.

Orders Made

  • The plaintiff's application for an extension of the limitation period for all defamation claims (paragraphs 25–29, 31–35, and 37–39 of the statement of claim) was refused.
  • All defamation claims against the first and third defendants were struck out and dismissed.
  • The plaintiff's notice of motion for default judgment (filed 18 December 2024) was dismissed with costs; the plaintiff was stayed from making any further default judgment application until a defendant had failed to comply with a court order to file a defence by a specified date.
  • The intimidation claims (paragraphs 30 and 36 of the statement of claim) were struck out with leave to replead.
  • The plaintiff was ordered to file an amended statement of claim within 28 days, deleting the defamation claims, repleading the intimidation claim, and accompanied by a Statement of Particulars conforming with UCPR r 15.12.
  • The proceedings were removed from the Defamation List and placed in the General List, with a return date before the Judicial Registrar for timetabling.
  • The plaintiff was ordered to pay the first and third defendants' costs of the application and of the defamation proceedings.

Key Takeaways

  • Compliance with the s 12A concerns notice procedure under the Defamation Act 2005 (NSW) is a mandatory precondition for any defamation claim arising from a publication made on or after 1 July 2021; failure to serve a valid notice is fatal to those claims.
  • A plaintiff's prior litigation history in defamation, including earlier proceedings in the same court, is a relevant factor when the court assesses whether to extend time under the Limitation Act 1969 (NSW).
  • Where publications occurred more than twelve months before the commencement of proceedings, the court retains a discretion to extend time, but that discretion operates within a framework that weighs the plaintiff's circumstances and knowledge carefully.
  • The District Court confirmed that claims for injury to health and economic loss in defamation (and related) proceedings must be properly particularised under UCPR rr 15.7, 15.8, and 15.12; bare unparticularised assertions of loss are not sufficient.
  • Inadequate pleading of the elements of the tort of intimidation will result in the claim being struck out, though the court may grant leave to replead where the deficiency is one of form rather than substance.

Legislation and Cases Referenced

Legislation
- Defamation Act 2005 (NSW), ss 12A, 12B
- Limitation Act 1969 (NSW), ss 14B, 63
- Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 15.7, 15.8, 15.12, 42.20

Cases
- Kelly v Davis [2022] NSWDC 352
- Kelly v University of New South Wales [2022] NSWDC 392
- Kostov v Nationwide News Pty Ltd (No 1) [2018] NSWSC 1822
- Doueihi v State of New South Wales (No 3) [2022] NSWSC 1403
- Lehrmann v Network Ten Pty Ltd (Limitation Extension) [2023] FCA 385
- Landrey v Nine Network Australia Pty Ltd [2024] FCAFC 76
- Nationwide News Pty Ltd v Vass [2018] NSWCA 259
- Joukhador v Network Ten Pty Ltd [2021] FCAFC 37
- Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726
- Gallo v Dawson (1990) 93 ALR 479
- McGuirk v University of New South Wales [2010] NSWCA 104
- Duraisamy v Sydney Trains [2019] NSWCA 269
- Noonan v MacLennan [2010] QCA 50
- Isaac v TCN Channel Nine Pty Ltd [2023] VSC 70
- McKay v Paule [2022] ACTCA 72
- Galam v Shahin [2023] SASCA 27
- Bewry v Reed Elsevier UK Ltd [2014] All ER (D) 361
- Gary Leech v John Silvester [2012] NSWSC 1367
- Khan v Hassan (Ruling No 3) [2023] VCC 2243