My comments in last month’s post were directed at avoiding unnecessary issues relating to first/last day time calculations. After that post I was reminded (another shout out to David Wang of Hyde Park Legal), that the principles of Murphy’s Law (if anything can go wrong it will) apply with full force to looming deadlines.

In Tu v Chang [2017] NSWDC 352 (a Wechat defamation case), the limitation period expired on a Monday and on the Friday prior a commercial agent duly delivered the statement of claim to the registry “bulk box”. Unfortunately, even though the parties were correctly named, several of them were described as “first defendant”. This was enough for the registry staff to reject the filing – a state of affairs that didn’t come to light until Tuesday. As a result the plaintiff had to file a motion to (successfully) seek orders about the date of commencement of proceedings (on the basis that the filing was wrongly rejected).

There are some interesting observations in the judgment including the court’s powers to deal with irregularities and how modern case management has changed practice because: “failure to comply with the provisions of the Act and UCPR is hardly unexpected“. Substance will prevail over form it seems.

If you think the District Court registry were tough, one of the cases referred to was Marson v Network Ten [2016] NSWSC 1245 (another last day filing of a defamation matter – this time in the Supreme Court). In that case filing was rejected because: “…it was fastened with a Tudor owl paper clip instead of a staple and the accompanying documents were put together with a bulldog clip” (in breach of r 4.3 UCPR).

To these examples I can add my own horror story of an application to set aside a statutory demand which required an appearance before a duty judge at 6:30pm (special after hours fees were incurred) on the 21st (i.e. last) day, for the sole purpose of filing documents. The freshly filed documents then needed to be served before midnight (which they were because the solicitors for the defendant had after hours reception facilities).

Although sometimes, “things happen”, the motto of the story remains – don’t mess with limitation periods!

Creative commons acknowledgement for the photograph.

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