Buckley v Newcastle Newspapers Pty Ltd

District Court of NSW|2008-05-09|Before: McHugh J

CITATION: Buckley v Newcastle Newspapers Pty Ltd [2008] NSWDC 90 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 9 May 2008 EX TEMPORE JUDGMENT DATE : 9 May 2008

CATCHWORDS: LIMITATIONS - defamation - delay of almost two years - plaintiff involved in coronial inquiry and on stress leave - subsequent wrong advice from solicitors re limitation period - extension granted

LEGISLATION CITED: Defamation Act 1974 (NSW) Limitation Act 1969 (NSW), ss 14B, 56A and 60G(2)

Boland v Dillon; Cush v Dillon (No 2) [2007] NSWDC 77 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Dehsabzi & Dehsabzi v John Fairfax Publications Pty Ltd [2007] NSWDC 247 CASES CITED: Dennis v Australian Broadcasting Corp [2008] NSWCA 37 Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 Maitland v Nationwide News Pty Ltd [2004] NSWCA 155 Russo v Aiello (2003) 201 ALR 231

Plaintiff: Shane Buckley PARTIES: First Defendant: Newcastle Newspapers Pty Ltd Second Defendant: Joanne McCarthy

COUNSEL: Plaintiff: D Harkin Defendant: D Sibtain

SOLICITORS: Plaintiff: Nicolas Moir & Associates Pty Ltd Defendant: Freehills

HER HONOUR: The plaintiff commenced proceedings for defamation in the District Court at Newcastle on 27 November 2007. The causes of action are two publications in The Newcastle Herald dated 22 January 2005 and 23 January 2005. By reason of the operation of the Limitation Act 1969 (NSW) which in s 14B(3) reduced the limitation period to one year, the cause of action was out of time by approximately one year and eleven months.

Section 56A provides a procedure for the extension of the limitation period in s 14B. Section 56A(4) provides: "After hearing such of the persons likely to be affected by the application as it sees fit, the court may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines. However, the court cannot extend the period beyond 3 years running from the date on which the defamatory matter concerned was published."

The parties have agreed in their submissions before me that the language of this provision is similar to the language of s 60G(2) Limitation Act 1969 concerning the extension of time for an action for negligence, nuisance, breach of duty or personal injury and that I can accordingly have regard to the decision of Ipp A-JA (as his Honour then was) in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207, particularly at [48] - [55]. Mr Sibtain submitted to me that the test was not simply a matter of whether a fair trial was possible, in that there is a question of whether or not there is prejudice, but there is also a question of the sufficiency of the explanation and whether it would be fair to grant the application in the circumstances.

The relevant factors to consider, the parties both submitted to me, include the broad range of factors set out in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551-556 per McHugh J. I note in addition that I drew to the parties' attention the recent Court of Appeal decision of Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 where the Court of Appeal has pointed out that the factors in Brisbane South Regional Health Authority v Taylor need to be read with some caution, having regard to the special factors in defamation litigation including, in this case, the reduced limitation period.

Before considering the facts in the case I should note that the law in this area changed in quite dramatic circumstances in 2003 when the limitation period of six years for actions commenced under the Defamation Act 1974 was reduced from six years to one year, with a two year extension. At this time New South Wales was one of the pioneers in this field and the limitation period remained at six years in some other States and Territories. This often led to considerable complexity where causes of action might be statute barred in one State but not in another. The impact that this had on defamation actions was, to quote from what the High Court said in Russo v Aiello (2003) 201 ALR 231 at 102 and 103, that there were complex time limits of the kind that could perhaps lay traps for people with claims. That happened in this case because when the plaintiff did eventually see a solicitor in January 2007 he was given erroneous advice that there was a six year limitation period for defamation actions and there was "no need to rush" (paragraph 9 of the Mr Buckley's affidavit). Indeed, that is one of the reasons for the plaintiff's failure to file an action between January 2005 and 27 November 2007.

The purpose of this reduction in the Limitation Act is because delay in defamation actions has particular importance. Defamation actions are unique in that delay in commencement or in prosecution of the action can result in the reduction of damages to a reduced or even nominal sum. It was for this reason, and also to ensure that the speed of the remedy should be appropriate for the cause of action, that the limitation period was reduced.

Having made those general comments, I note that there have been several cases that have come before this court in which the provisions of the Limitation Act have been considered. The parties referred me to Boland v Dillon; Cush v Dillon (No 2) [2007] NSWDC 77, where there was a delay because the solicitors, who I note were country solicitors, did not appreciate the limitation period involved. Another case in which the defendant was successful was Dehsabzi & Dehsabzi v John Fairfax Publications Pty Limited [2007] NSWDC 247. That was, however, a case where the plaintiffs knew of the limitation period and made an election not to proceed in relation to some articles in The Australian Financial Review. What changed their minds was that they received a communiqué from the Taliban Military Council in Afghanistan. It would appear that the Taliban are keen readers of The Australian Financial Review and they had read the articles in The Australian Financial Review and they had passed a death sentence on the plaintiffs which was the explanation for their commencing proceedings on the last day of a limitation period. That case, as so many cases in this area of the law do, turns on its own facts.

I now come to the facts in these proceedings. The plaintiff is a nurse in an aged care facility which is attached to Gosford Hospital. He has been a nurse for thirty-three years. It would appear that in 2002 a patient who was in the care of the plaintiff committed suicide on 3 October. There was an inquest in 2005 and the plaintiff has described in quite vivid terms how allegations were put in cross-examination by the family of the deceased which were apparently taken from an affidavit provided to them by a Ms Crowley. These allegations are described by Dr Alan White in his report in these proceedings (exhibit 1) as warranting the description that, "Mr Buckley and others received a terrible time at the hands of the press" (p 1). However, as Dr White notes, and as the plaintiff said from the witness box, at the end of those proceedings witnesses from the Department of Health provided evidence that the staff were not sleeping on the job and had performed their duties properly. The coroner handed down findings which exonerated Mr Buckley.

The word "again" is used by Dr White to refer to the fact that there was an earlier inquiry following the death of this patient in 2002 which had also exonerated the plaintiff. In other words, the plaintiff had had some years of dealing with this series of very serious allegations about his professionalism from Ms Crowley and indeed, presumably, some other forms of inquiry. It was against this background that these articles appeared in The Newcastle Herald on successive days.

The plaintiff gave a vivid description of their impact upon him. He said that as a result the allegations were everywhere and he was known as "the sleeping nurse".

Between 2005 and the date of the inquest (ending on 21 June 2006), the plaintiff was preoccupied not only with this inquiry but also with a complaint that in late February 2006 Ms Crowley made about him. She said he was "glaring" at her and that she had been intimidated. This was a most serious accusation because she was asserted to be a "whistleblower" and in addition to the statutory rights enjoyed by whistleblowers, she was also a witness in the proceedings. This could have been a serious allegation. The plaintiff had trouble getting a copy of her complaint and his elderly father, who was about eighty-one at the time, insisted on taking the plaintiff to see his (the father's) solicitor. One of the concerns for the plaintiff during this time was that his father was very affected by these allegations, particularly when they were made public by the newspaper. His father required three admissions to hospital in 2006, and another three in 2007, and it was in the course of the third admission in November 2007 that the plaintiff's father died. It was the plaintiff's evidence that his father was, to use his word, "decimated" by these events and that he did his best to shield his father from them. It was a great concern to him that in addition to the impact on his own health he had to worry about his father.

The plaintiff's health is dealt with in an affidavit of Dr Drew, the plaintiff's general practitioner. The plaintiff first consulted Dr Drew on 13 March 2006. He then saw him on 20 March, 13 April and 16 May and thereafter on other dates, for some considerable time. Dr Drew said the plaintiff was not fit for work over this period. According to Dr White, the plaintiff appears to have been off work for about six months. The plaintiff, following the provision of a medical certificate by Dr Drew on 16 May 2006, remained off work entirely from some time at the beginning of 2006 until 28 June 2006, when he returned part time, on reduced hours and reduced workload. He was still suffering depression and seeing a doctor in June, he said in his evidence. On 4 September he returned to full-time work at the same workplace. Mr Sibtain in his submissions made much of the fact that this was the place where the damage had been done. I note these submissions but it seems to me that this is one factor that I need to see in the context of all of the competing factors.

The plaintiff's return to the workplace on 4 September 2006 was of course some three to four months before he first saw solicitors in January 2007. It was his evidence that he went to see the solicitors Nicolas Moir and Associates in January and that in addition to the severe symptoms of depression, anxiety and avoidance that he had had, he found it difficult to talk to them about the matters in question in a systematic way. When he set out the matters in question in his affidavit at paragraph 8, it seems to me that what he went to see the solicitors about was what he probably best described in his evidence as "everything". There is no evidence before me that the plaintiff had any idea about the law of defamation before he went to see these solicitors. And regrettably, considering the advice he was given, he may not have known very much more after he left their office.

Mr Buckley said that when these solicitors asked him a question, he found he would talk compulsively for some minutes without really answering the question as his thoughts went from one association to another. Whatever the question asked of him, he would "come back to the actions of one of the witnesses in the inquest and her motivations" (paragraph 8 of his affidavit). That makes it quite clear that when he went to see the solicitors he was not talking about the defamation action; he was preoccupied with what had happened to him. He said that he could see that it was difficult for the solicitors to understand what he was saying but that he could not help responding in this fashion.

Probably not surprisingly Mr Moir said to him, "We don't think you are ready to give proper instructions". Mr Moir went on to say, incorrectly I should add, that: "There is no need to rush things, as Mr Harkin the barrister has advised me that we have six years from the date of publication to file because we're proceeding under the old Act." (paragraph 9 of Mr Buckley's affidavit)

This was on one occasion and this is advice that was given to him at some time at or shortly after he first saw the solicitors in January. Clearly what the plaintiff had done had been to see solicitors and do his best to raise "the matters". One of the things that seem to have caught his lawyer's attention was the newspaper articles and the need to sue for defamation.

The plaintiff was preoccupied during 2007 with his father, who died after a long battle with heart problems in November 2007. He says that he was extremely upset by this, and his belief was that the publicity surrounding the inquest had exacerbated his father's heart condition. However, after the death of his father he felt more able to concentrate in preparing his action against The Newcastle Herald and some of the previous difficulties he had had when speaking with his lawyers began to subside, even though he felt a lot of grief about his father's death.

Mr Sibtain submits to me that I should draw from Dr Alan White's report the conclusion that the plaintiff has no mental illness. This is correct. However, it is not necessary to suffer from mental illness in order to have a satisfactory explanation for not commencing defamation proceedings. Mr Buckley was coping with a series of accusations which were at fever pitch between December 2004 (before publication) and June 2006, when the coroner handed down his report. He was still unfit for full-time work as late as 4 September and clearly the stress of going through a complaint in the workplace, giving evidence in a coronial inquiry and being on the receiving end of some newspaper articles would have been, for any member of the community, considerable. It is not necessary to suffer from a psychiatric illness to be affected by stress, to be depressed, to drink too much, as Mr Buckley did, and otherwise to respond in an angry and, indeed, disorganised way to the stress of being involved in a number of pieces of litigation. In addition, he had an elderly father who was becoming rapidly more ill. The plaintiff had, I assume, some medical knowledge and must have appreciated that there could be a relation between what had happened to him and his father's medical condition.

Mr Sibtain also drew my attention to the report of Dr Drew and noted that Dr Drew had found the plaintiff was fit to go back to work, for at least reduced hours on 28 June. Dr Drew says in his report that he considered Mr Buckley was suffering from a traumatic stress disorder relating to his employment. I am conscious of the fact that his diagnosis and his description of this as having an impact on the plaintiff's ability to rationally consider such matters as legal preparation and representation and the ability to instruct solicitors, is to some extent contradicted by Dr White's report.

In this court we routinely reconcile the irreconcilable, namely, the competing medical reports of a plaintiff and defendant, and this is a good example. Mr Buckley said that Dr White saw him for half an hour. Dr Drew was his treating doctor and he probably saw him for half an hour each visit, or certainly for a considerably longer period of time both in terms of quality and quantity than Dr White. Great weight is always given to a report of treating doctors in personal injury cases. Dr Drew's report, in which he describes someone who is stressed, anxious, having sleep disturbances, feeling depressed and preoccupied, being frustrated and angry, suffering from a lack of clarity of thought process, having difficulty coping and the like, is evidence that the plaintiff was in a state of considerable stress, in circumstances where he was on the receiving end of some very serious allegations and where he simply did not know about the law of defamation.

Mr Sibtain submitted that a person who holds the highly stressful job that the plaintiff has ought, by reason of the nature of his employment, to be able to deal with high levels of stress and be able to make quick decisions such as the ability to instruct lawyers. However, the same could be said for most occupations. There is nothing before me in the evidence to suggest that there is something special about the plaintiff's job which gives him a greater ability to deal with the stresses of litigation than other members of the community. This is not a submission which I have found to be of assistance.

Having set out these facts I now turn to the consideration of the application of the test outlined by Ipp A-JA in Itek Graphix. It is my view that the plaintiff has adequately explained the factual circumstances in which, by reason of his high level of distress and concern about these ongoing allegations, he did not adequately inquire or seek legal advice or do something about these publications. His concern seems to have been to try to limit the damage caused by keeping his father out of it as much as possible, which is why he did not consult his father. He made it clear that he only went with his father to see a solicitor because his father had insisted and he thought that he should go along with it. When he did see a solicitor, he was given wrong advice.

I note that there is no assertion of actual prejudice and the question is what is " just and reasonable" is in accordance with the principles set out in Brisbane South Regional Health Authority v Taylor. It is important when considering the application before me to have regard to the quite generous period of extension given by the legislation, namely, two years. That is much more generous than other forms of legislation and the purpose clearly has to be for cases such as the present. It is not uncommon for persons who are the subject of allegations, sometimes of criminal conduct or professional misconduct, to be so preoccupied with those that they bring claims for damages for defamation at a later stage. Indeed, this was one of the arguments put for retaining the six year limitation period, namely that persons who were the subject of criminal proceedings would, first need to clear their name in those criminal proceedings.

The period of delay is quite long. The period of delay in Boland v Dillon was a month. The period of delay in Maitland v Nationwide News Pty Limited [2004] NSWCA 155 was nearly two months. The delay in the present case is considerable. However, the real problem is that the plaintiff has an explanation that I find to be adequate at least up to September 2006 and he has of course an even better excuse for his delay after he saw the solicitors in January 2007.

Ipp A-JA in Itek Graphix stressed the broad and flexible nature of the discretion in such cases. It seems to me on the facts before me as I have set out above that this is an appropriate case for the exercise of that discretion. Accordingly I propose to extend time to commence proceedings pursuant to s 56A to 27 November 2007, which is the date that the statement of claim was filed.

I will now hear from the parties in relation to costs.

Extend time to commence proceedings pursuant to s 56A to 27 November 2007.
Plaintiff pay the defendant's costs of the Notice of Motion and of the 4 April 2008.
Plaintiff pay the defendant's costs by reason of the filing of the Further Amended Statement of Claim.
These proceedings are listed for further directions on Friday 16 May 2008; defendant to notify of objections (if any) to the Further Amended Statement of Claim by Thursday 15 May 2008.

29/05/2008 - Typographical Errors - Paragraph(s) Orders

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Defamation Act 1974(NSW)

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