NSW International defamation and limitations

Discussion in 'Defamation Law Forum' started by Rudder83, 17 June 2019.

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  1. Rudder83

    Rudder83 Member

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    I live in Belgium. Somebody in Australia, let's call her Person1, has been sending defamatory text messages to Person2 (my ex-wife) in Belgium about me. Person2, having held a grudge ever since the divorce and having been involved in her own defamation against me over the years, seems to have been more than happy to show those text messages and accusations around to my wider social circle. The accusations range from stalking Person1 by making new facebook & email accounts to contact her with, over having made "weird BDSM sexual advances" to her, to even that I perpetrate terrorist attacks. The text messages are said to contain text messages I sent to Person1 which purportedly "prove" said accusations. I never sent anything of the sort to Person1 so I assume said "proof" is at best quote-mined and at worst outright falsified. I asked Person2 to provide me with said text messages so that I might be able to defend myself and refute them but Person2 refused, suggesting that Person2 is well aware that said messages are quote-mined/falsified. A criminal investigation is underway in Belgium against Person2 over these, and similar, defamatory comments. I fully expect that during the trial I will learn of the exact nature of the messages in question, and thereby acquire the necessary evidence for a civil action in Australia against Person1 for defamation, however this might take a long time. So I have a couple of questions:

    1. If I understand correctly, in Australian law a "publication" occurs each time the matter complained of is heard, read or seen. Does this mean that the one year limitation period will run from the first time I myself will see these messages? Or does the limitation period run from the time Person1 sent those messages to Person2?

    2. If the answer to question 1 is no (to the first question, ie yes to the second question) can I sue Person1 without actually having the messages in question as evidence? I have witnesses willing to testify that they were shown said messages by Person2.

    3. If the answer to question 2 is also no, would this (ie me not being "allowed" by Person2 to have seen the messages myself) constitute cause for a request for an extension to the one year limitation period? I've read that the period can be extended to three years but I've not been able to find details on this.

    4. In Belgian law there is a stipulation that makes it illegal for someone to publicize private communication with the intent to deceive or cause harm. Does something similar exist in Australian law? If so, and assuming some of Person1's "proof" constitute quote-mining from messages I sent rather than outright falsification, do I have a cause of action for such act distinct from the cause of action for defamation itself?

    5. During my involvement with Person1 she also managed to defraud me out of 1.600 AUD (which I will also sue her for) and a solidarity fund I managed out of 28.800 AUD (which I will probably not sue her for since the specifics make it very difficult to prove fraud). Do different causes of action (fraud & defamation in this case) get 'combined' into a single lawsuit? Both further support each other, in the sense that some of the defamatory comments support the fraudulent nature of her behaviour and the fraud supports the malicious nature of the defamation.

    6. Given that Person1 has Belgian nationality and is in Australia on some long-term visum (she's lived there for four years already) I consider it likely that she'll just hop on a plane back to Belgium the moment I sue in Australia. I've read that it's possible to request an injunction against her leaving the country, how easy it is to obtain such injunction? What if said injunction conflicts with, say, her visum running out?

    Thanks for your consideration.
     
  2. Rod

    Rod Lawyer
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    1. Yes.
    2. Yes. Oral testimony is acceptable.
    3. n/a
    4. Unlikely, and probably not in the way you mention. There are lots of different laws but without seeing the texts it is hard to comment.
    5. Hard to comment without details, but probably should if the causes of action are related to each other.
    6. I don't do immigration law so can't comment about injunction stopping person 1 leaving Australia. I can say it will be hard getting an injunction.

    It is possible an Australian court will refuse to hear a defamatory action saying the better place is in Belgium.
     
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  3. Rudder83

    Rudder83 Member

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    Thank you for your response.
    Just to be clear, this is a yes to the first question? A new one year limitation period will run from the moment when I myself first see the messages in question?

    I understand, and not having seen the texts myself it is equally hard to know exactly which questions to ask.

    The problem with that is that under Belgian law in this specific case (ie defamatory comments made in writing which are sent to individual persons) it is only considered "published" if it has been sent to at least two persons. I'm pretty sure Person1 has, in fact, sent these to more than one person but I only have knowledge and proof of her sending them to one person so I have no cause of action for defamation in Belgium. That's the reason I would sue in Australia rather than Belgium in the first place. Would this, the lack of a cause of action in Belgium, constitute a valid argument for the case to be heard before an Australian court?
     
  4. Rod

    Rod Lawyer
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    1. Q. does the limitation period run from the time Person1 sent those messages to Person2. A. Yes. Note the time limit can be extended to 3 years in certain unusual circumstances

    Yes
     
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  5. Rudder83

    Rudder83 Member

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    Ok thank you very much. One last question, can I make an order for discovery against Person1 demanding her to produce all documents she sent to people making these defamatory comments against me? Because I'm certain she sent these to more than just Person2 and since they were sent by electronic carrier (email, text, private messages on facebook, ...) she should still have copies of these.
     
  6. Rod

    Rod Lawyer
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    yes - after an application is made. It is to the court to decide if discovery orders will be issued.
     
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