Cassar v Network Ten Pty Limited

Judgment 1The plaintiff was an independent candidate for the Federal seat of Robertson at the Federal election on 21 August 2010. 2During the week preceding the election the plaintiff was involved in an incident which led to assault charges being laid against him. Ultimately he was acquitted of the charges. 3On 19 August 2010 TCN Channel Nine Pty Limited ("Channel Nine") published on its evening news a description of the incident which was allegedly defamatory of the plaintiff. On 9 August 2011 the plaintiff sued Channel Nine for damages for the alleged defamation. 4The circumstances of the alleged assault were said to be that the plaintiff king-hit another man in a bar, breaking his jaw in two places. 5On 20 January 2012 the plaintiff filed a summons seeking an extension of time in which to commence proceedings against the defendant in respect of (a) the publication on the defendant's evening news on 19 August 2010 of an alleged defamation of the plaintiff in respect of the assault and (b) the publication of the above broadcast on the internet. 6The extension of time sought in respect of the internet publication was not pressed as that claim had been commenced against the defendant within time. The claim in respect of the publication on the defendant's evening news was pressed. The summons was heard on 21 March 2012 and judgment was reserved. 7The only evidence at the hearing (apart from the tender of the statement of claim against Channel Nine) was that contained in the affidavit of the plaintiff sworn on 23 December 2011 and his cross examination upon that affidavit. 8The plaintiff gave evidence that on 22 November 2011 he was "googling" his name in relation to the incident in the hope that there might be a correction or apology, and it was then that he first became aware of the publication by the defendant on about 19 August 2010 of the news item relating to the alleged assault. 9The plaintiff, in cross examination, conceded Robertson was a fairly marginal seat and one which had attracted some controversy. He said he was aware that the fact of his being charged would have been in the media. He was concerned about the effect on his election prospects as he was again, in March 2011, when he stood for the State seat of Gosford. He well understood the potential for those matters to affect him and his reputation. He obtained legal advice from a solicitor and referred at least one local journalist to him. He saw newspaper articles about the charges and realised other media sites had information about the charges. He was contacted by a number of journalists. He assumed the incident could have been on television. He was not asked if he had been contacted by the defendant as, at that stage, there was no evidence available to defendant's counsel that such had occurred. 10After judgment was reserved the defendant made an application to adduce further evidence in respect of the summons. The application was consented to. The further evidence was adduced on 25 May 2012. It comprised an affidavit of Joshua Murphy affirmed on 4 April 2012. Mr Murphy was a reporter with the defendant. Mr Murphy was not cross examined on his affidavit. 11The additional material supplied by the evidence of Mr Murphy was that he spoke to the plaintiff and later his solicitor on 18 August 2010 about the alleged assault, that the plaintiff was told in terms that the defendant had the victim's side of the story and he was asked for his side of the story. Mr Murphy clearly identified himself as a reporter from Ten News in Sydney. 12On 25 May 2012 an amended summons was filed by the plaintiff in which an extension of time for the commencement of proceedings sufficient to allow the plaintiff to file a statement of claim in the form annexed to the amended summons was sought. 13The proposed statement of claim sought damages for alleged defamatory publications by the defendant in respect of the assault: (a)on or about the evening of 18 August 2010; and (b)at about 6.00 am on 19 August 2010; and (c)at about 6.30 am on 19 August 2010. 14Each of these causes of action, prima facie, was not maintainable by virtue of s 14B of the Limitation Act 1969 which states: "An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of." 15The extension of time was sought by the plaintiff pursuant to s 56A of the Limitation Act 1969 which provides: "(1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action. (2) A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 14B to a period of up to 3 years running from the date of the publication. (3) A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2)." 16It has been held in respect of s 56A (or its equivalent in other States) that: (a)the burden that must be discharged is to establish that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the date of the publication - Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537, Rayney v The State of Western Australia (No 3) [2010] WASC 83 at [41]; (b)the onus rests with the plaintiff - Rayney [41], Ahmed v Harbour Radio Pty Limited [2010] NSWSC 676, Carey v Australian Broadcasting Corporation [2010] NSWSC 709, (2010) 77 NSWLR 136 at [45]; (c)the test is objective - Noonan [20], Carey [48]; (d)it is a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances - Rayney [41]; (e)if the plaintiff proves the fact then the court is obliged to extend time. Extension in these circumstances is mandatory - Ahmed [28], Carey [45]; (f)section 56A limits the period of extension to an extension "of up to three years running from the date of publication". This has been described as involving the exercise of a discretion in the sense of involving a normative judgment - Ritson v Gay and Lesbian Community Publishing Limited [2012] NSWSC 483 at [24], [25]. 17The plaintiff submitted that he did not know of the publication within the limitation period. He did not know during that period that the defendant was going to publish anything about him or, if it did, that such publication would be defamatory of him. In those circumstances it was not reasonable for the plaintiff to have commenced an action in relation to the matter complained of within one year from the date of the publication. An extension of time must be granted. 18The defendant conceded at the hearing on 21 March 2012 that it did not dispute that the plaintiff did not have actual knowledge of the defendant's broadcast prior to November 2011. 19It has been said that "unusual circumstances" may be present where the plaintiff is unaware of the publication within the period of one year from the publication having occurred - Rayney at [41], Ahmed [52], Han v The Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498 at [24], Ritson at [18], Wookey v Quigley (No 2) [2010] WASC 209 at [58]. The plaintiff relied upon those statements. 20However, the circumstances which justify an extension of time will depend on the facts of each particular case. In Wookey Kenneth Martin J said: "[82]The statutory policy underlying [14B] deliberately sets a short limitation period. This demands that parties and their advisers act timeously in respect of the narrow limitation window that is allowed... [84]...the threshold imposed under [56A] to secure a extension of time is a high one..." "[77] Where a person does not know the content of a publication to someone which they know exists, yet they suspect it may be defamatory of them, the person would ordinarily be expected to take prompt steps to obtain access to the publication, with a view to assessing whether the communication is defamatory or not..." 21The defendant submitted that the plaintiff could only succeed if he could establish, objectively, that it was not reasonable in the circumstances for him to have commenced an action in relation to the matter complained of within one year from the date of the publication. This he had not done. The plaintiff knew that the matter was of significant interest to the media; that the defendant was interested in the story; he knew the defendant had only one side of the story; and he assumed the incident could have been on television. There was thus ample ground to suspect the defendant may have published material in respect of the assault which was defamatory of the plaintiff. If he had searched Google for his name as he did in November 2011 or had otherwise taken steps to inform himself he would have found the defendant's publications about him. 22In my opinion, in the circumstances of the present case, the plaintiff or his lawyer would be expected to take prompt action to ascertain if the defendant had published material about the incident and if such material was defamatory. The plaintiff failed to do this. In my opinion, the plaintiff has not established that it was not reasonable in the circumstances for him to have commenced an action in relation to the matter complained of within one year from the date of the publication. 23Accordingly, the application to extend time is refused. 24Section 23 of the Defamation Act 2005 provides: "If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought." 25As the plaintiff proposed to bring three additional causes of action arising out of the same or like matters to the internet publication, leave of the court was required pursuant to s 23 of the Defamation Act. The plaintiff indicated he would undertake to consolidate all of the proceedings if leave was granted. As I understand it, this was a course acceptable to the defendant. Accordingly, had I proposed to grant the extension of time sought, I also would have granted leave under s 23 of the Defamation Act on the basis agreed by the parties.