Summons v 1414 Degrees Ltd

1. [1]

   THE COURT: On 1 February 2026, the applicant, Mr Jamie Summons, filed a summons seeking an extension of time and leave to appeal limited to the question of costs. On 19 December 2025, Mr Summons was ordered by Andronos SC DCJ to pay costs on an indemnity basis after a defamation action he commenced was dismissed: Summons v 1414 Degrees Ltd (District Court (NSW), 19 December 2025, unrep).

Defamation proceedings commenced by the applicant

1. [2]

   Two ASX Announcements were made by the first respondent, 1414 Degrees Ltd, about the applicant; one on 23 June 2021 and one on 15 July 2021.

2. [3]

   On 26 August 2025, the applicant served a purported Concerns Notice on the respondents regarding the publication of the alleged defamatory statements in 2021 made in or based on the ASX Announcements.

3. [4]

   On 26 September 2025, the respondents explained to the applicant in writing that his defamation claims were statute barred by ss 14B and 14C of the Limitation Act 1969 (NSW). The respondents also explained to the applicant in writing that if defamation proceedings were nevertheless commenced, and dismissed as they would inevitably be, indemnity costs would be sought. They said:

4. [5]

   The applicant’s response to this explanation was to ignore the clear warnings he had been given and, instead, to make offensive and puerile remarks in correspondence with the respondents’ solicitors.

5. [6]

   On 2 October 2025, in response to the letter from the respondents, the applicant sent five emails. In his judgment, the primary judge set out in some detail the “obviously indefensible correspondence” that the applicant had directed to the respondents, including:

   1. (1)

      an email to the respondents’ solicitors at 10:23am, in which he called the 26 September 2025 statements “lies”; in response to the foreshadowed application for indemnity costs, said, “ooooohhhh – scary scary”, which the primary judge described as “childish[]”;

   2. (2)

      an email to the respondents’ solicitors at 2:53pm, in which he “gratuitously insulted the solicitor by suggesting she was not legally qualified” (to quote the primary judge);

   3. (3)

      an email to the second respondent at 2:11pm, in which he “insulted the second defendant as a narcissistic person and ‘too stupid to think there are consequences’” (again quoting the primary judge), concluding with the words:

   4. (4)

      an email to the respondents’ solicitors at 5:36pm, in which he described the 26 September letter as “Blah”. The primary judge described the applicant as “utterly and derisorily dismissive” of that letter.

6. [7]

   The primary judge was correct to describe the applicant’s correspondence as “obviously indefensible”.

7. [8]

   On 28 October 2025, years out of time, the applicant commenced defamation proceedings.

8. [9]

   On 10 December 2025, the respondents again wrote to the applicant and explained why the applicant’s claims were time-barred and invited the applicant to discontinue the proceedings.

9. [10]

   The same day, the applicant responded to that correspondence denying that his claim was statute barred, and making further insulting statements including:

   1. (1)

      in an email to the respondents’ solicitors and to a Mr Lumsden, at 5:13pm, the applicant changed the salutation from “Dear Mr Lumsden” to “Dear Lumsden (Wankmans)”, and stated:

   2. (2)

      in an email to the respondents’ solicitors and Mr Lumsden, copied to three others, at 7:17pm, the applicant stated:

10. [11]

    On 15 December 2025, the applicant made a belated attempt to significantly expand the scope of his claim. The proposed amended statement of claim sought to set aside a Deed of Release that had been executed between the applicant and the respondents on 14 July 2021. Restitution and/or equitable compensation/damages were claimed in respect of the Release, which was alleged to be vitiated by reason of duress, coercion, misrepresentation and unconscionable dealing. A declaration was sought that the Deed could not be used to bar the claims in defamation. On 19 December 2025, this proposed amendment was rejected by the primary judge on the basis that the claims made still relied on an underlying defamation claim which remained statute barred. No application for leave to appeal is brought from the decision of the primary judge to refuse leave to amend the claim.

11. [12]

    The respondents also moved the court to strike out the applicant’s claim on the basis the defamation claim was statute barred. In the end both sides sought that the limitation issue be determined as a separate question, and the primary judge did so. Judgment in the District Court was handed down on 19 December 2025. The primary judge found that the defamation claim was statute barred; on that basis the statement of claim was struck out; leave to amend the statement of claim was refused; and the proceedings were dismissed.

12. [13]

    It was apparent to his Honour that the applicant was operating under a misunderstanding that the previous common law publication rule explained in Dow Jones v Gutnick (2002) 210 CLR 575; [2002] HCA 56 was applicable. The effect of the Defamation Amendment Act 2020 (NSW) was that where a plaintiff relied on electronic downloads as constituting publication, the cause of action in defamation was taken to have accrued on the date the subject matter was first uploaded. The primary judge found that this change in the law was the matter the respondents had communicated to the applicant in correspondence prior to the commencement of the proceedings. His Honour found that the applicant had consistently ignored the substance of this correspondence and instead met it with hostility.

13. [14]

    No application for leave to appeal is brought from the decision of the primary judge to strike out the claim on the basis the cause of action was statute barred and to dismiss the proceedings.

14. [15]

    The respondents sought indemnity costs, as they had foreshadowed in correspondence. The primary judge was satisfied that the conduct of the litigation by the applicant was unreasonable such that it warranted an order for costs on an indemnity basis. In drawing this conclusion, his Honour found:

Application for leave to appeal

1. [16]

   The application for leave to appeal was made some days late. No prejudice is shown in dealing with the late filed application for leave to appeal. An extension of time to the date the application was filed is appropriate.

2. [17]

   The applicant requires leave to appeal pursuant to s 127(2)(b) of the District Court Act 1973 (NSW), being an appeal from a judgment or order as to costs only. In Huang v Attapallil [2017] NSWCA 181, at [21], White JA said of the requirement for leave to appeal limited to the issue of costs:

3. [18]

   Further, as was explained in John Anthony Arena Pty Ltd v Franpina Developments Pty Ltd [2022] NSWCA 139 at [18]:

4. [19]

   The primary judge was called on to make a discretionary judgment in relation to costs. The principles in House v The King (1936) 55 CLR 499 at 505 apply to an appeal from the exercise of that costs discretion. On an appeal it would be necessary for the applicant to show an error of legal principle, or that the primary judge took into account irrelevant matters, or mistook the facts or failed to take into account or give sufficient weight to material matters, or otherwise to show that the order was so plainly unreasonable or unjust that some such error must have occurred.

5. [20]

   The grounds of the draft notice of appeal provide:

Consideration

1. [21]

   As a general rule, this court will grant leave to appeal in cases that involve issue(s) of principle or public importance or where it is reasonably clear that an error, going beyond the merely arguable, has been made, resulting in injustice: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38] and The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13].

2. [22]

   The applicant was explicitly warned, prior to commencing his claim, that his claims were statute barred and untenable and that if the applicant were to commence proceedings, indemnity costs would be sought when they were struck out. The proceedings for defamation were dismissed on the basis that the applicant’s claims were statute barred. That conclusion was clearly correct. Time had run out for the applicant to bring a defamation claim years before he commenced the case.

3. [23]

   Section 98 of the Civil Procedure Act 2005 (NSW) provides a wide judicial discretion with respect of determining costs orders, including to what extent each party will bear or “to what extent costs are to be paid”: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [22], [44], [134]. The primary judge acknowledged that such an order is only made where there is a clear basis to conclude that there has been unreasonableness in the conduct of the litigation. The discretion to award indemnity costs may be enlivened where a party persists in what should have been seen to be a hopeless case: Capello v HomeBuilding Pty Ltd [2023] NSWCA 109 per Mitchelmore JA (with whom Simpson and Meagher JJA agreed) at [47].

4. [24]

   The primary judge was satisfied the conduct of the applicant was sufficiently unreasonable to ground an order of costs on an indemnity basis. No arguable error of fact or law has been shown in that decision.

5. [25]

   None of the proposed grounds of appeal raise any matter going beyond the merely arguable.

6. [26]

   It is correct that, as a general rule, a court will be more reluctant to order indemnity costs against an unrepresented litigant, however the circumstances may make it appropriate to do so: Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313 at [48]. Some allowance should be made for an applicant’s lack of knowledge of the law, unfamiliarity with court practices and lack of objectivity as an unrepresented litigant: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 542 (Kirby P, Hope and Samuels JJA agreeing). The applicant’s complaints about his status as a self-represented litigant do not, however, avail him here. The fact that the litigant is self-represented does not preclude the making of an indemnity costs order. So much was said in Huang at [38] and Capello at [51]. No error, let alone any arguable House v The King error, has been shown in the way the primary judge addressed the applicant’s status as a self-represented litigant.

7. [27]

   The applicant’s suggestion that he took steps to “regularise the position” and to “alter course” by seeking to introduce substantial late amendments does not demonstrate any arguable error on the part of the primary judge. His Honour was correct that the proposed amendments did not cure the fatal Limitation Act defect at the heart of the applicant’s case. No error, let alone any arguable House v The King error, has been shown in the way the primary judge addressed the applicant’s attempts to “alter course”.

8. [28]

   As to the applicant’s suggestion that an indemnity costs order was an “unjust” or “disproportionate” result, we do not agree. Having regard to the facts found by the primary judge, the conclusion that an award of indemnity costs was appropriate was clearly open.

9. [29]

   No error has been shown in the exercise of the cost discretion by the primary judge. It was clearly open in the circumstances of this case to make an award of indemnity costs and his Honour did not err in doing so.

Conclusion and orders

1. [30]

   There is no issue of principle, question of public importance or reasonably clear error that would warrant the grant of leave to appeal in this case. For the foregoing reasons we make the following orders:

   1. (1)

      Time to file the application for leave to appeal extended to 1 February 2026.

   2. (2)

      Leave to appeal refused.

   3. (3)

      The applicant to pay the respondents’ costs.