George Bushara v Nobananbas Pty Ltd & Anor

Judgment 1By notice of motion filed 30 January 2012 the plaintiff seeks an order under UCPR Pt 14, r 14.28(1) that par 4 of the defence be struck out. 2In these proceedings the plaintiff claims damages for defamation arising out of the publication on about 8 September 2010 of matter on a website under the heading "Bike Engine Good Buying Guide". The claim is defended on a number of grounds which, relevantly, include a defence under s 18(1) Defamation Act 2005 (the Act) based on the plaintiff's failure to accept the defendants' offer to make amends. The defence is pleaded in par 4 of the defence filed 29 March 2011 in the following terms: "In further answer to the plaintiff's claim the defendants say that they made an offer of amends pursuant to Part 3, Division 1 of the Defamation Act 2005 (NSW) which offer was made as soon as practicable after becoming aware that the matter may be defamatory, and the defendants were ready and willing on acceptance of that offer by the plaintiff, to carry out the terms of that offer, which offer was reasonable in the circumstances and was not accepted by the plaintiff. Particulars of offer of Amends The offer was made by letter dated 23 December 2010 addressed and sent to the plaintiff's solicitors. The defendants rely upon the terms of the said letter as if set out herein seriatim." 3The letter of 23 December 2010 from the defendants' solicitors to the plaintiff's solicitors, referred to in the particulars, included the following: "This offer is open to be accepted in writing within 21 days of the receipt by you of this letter. Should your client accept this offer of amends then the proceedings brought by him shall be dismissed by consent without further cost to the parties." 4The provisions for the resolution of actions for defamation by offers to make amends are found in Div 1, Pt 3 of the Act which, relevantly, includes the following: "15 Content of offer to make amends (1) An offer to make amends: (a) must be in writing, and (b) must be readily identifiable as an offer to make amends under this Division, and (c) if the offer is limited to any particular defamatory imputations-must state that the offer is so limited and particularise the imputations to which the offer is limited, and (d) must include an offer to publish, or join in publishing, a reasonable correction of the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited, and (e) if material containing the matter has been given to someone else by the publisher or with the publisher's knowledge-must include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person, and (f) must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer, and (g) may include any other kind of offer, or particulars of any other action taken by the publisher, to redress the harm sustained by the aggrieved person because of the matter in question, including (but not limited to): (i) an offer to publish, or join in publishing, an apology in relation to the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited, or (ii) an offer to pay compensation for any economic or non-economic loss of the aggrieved person, or (iii) the particulars of any correction or apology made, or action taken, before the date of the offer. ... 17 Effect of acceptance of offer to make amends (1) If the publisher carries out the terms of an offer to make amends (including payment of any compensation under the offer) that is accepted, the aggrieved person cannot assert, continue or enforce an action for defamation against the publisher in relation to the matter in question even if the offer was limited to any particular defamatory imputations. ... 18 Effect of failure to accept reasonable offer to make amends (1) If an offer to make amends is made in relation to the matter in question but is not accepted, it is a defence to an action for defamation against the publisher in relation to the matter if: (a) the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory, and (b) at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer, and (c) in all the circumstances the offer was reasonable. (2) In determining whether an offer to make amends is reasonable, a court: (a) must have regard to any correction or apology published before any trial arising out of the matter in question, including the extent to which the correction or apology is brought to the attention of the audience of the matter in question taking into account: (i) the prominence given to the correction or apology as published in comparison to the prominence given to the matter in question as published, and (ii) the period that elapses between publication of the matter in question and publication of the correction or apology, and (b) may have regard to: (i) whether the aggrieved person refused to accept an offer that was limited to any particular defamatory imputations because the aggrieved person did not agree with the publisher about the imputations that the matter in question carried, and (ii) any other matter that the court considers relevant." 5The plaintiff submitted that the defence under s 18(1) must fail in limine because the offer was not an offer to make amends which attracted the application of s 18(1)(b). It was put that the effect of the limitation of time for acceptance of the offer demonstrated that the defendants were not ready and willing at any time before the trial to carry out the terms of the offer, and hence were incapable of meeting the requirement under sub-par (b). It was put that to be a valid offer of amends for the purpose of s 18 the offer must remain open and capable of acceptance by the plaintiff until the trial. 6The challenge focused on the construction of the words in sub-par (b) "at any time before the trial". It was submitted that the word "any" should be understood to mean "at all times", with the effect that, under the provision, the publisher is required to show that it was ready and willing to carry out the terms of the offer at all times before the trial. It followed, so it was put, that the publisher could only succeed if the offer was left open for acceptance at any time before trial. 7Statutory construction is, ultimately, a text-based activity ( Network Ten Pty Ltd v TCN Channel Nine [2004] HCA 14; (2004) 218 CLR 273, pars 87, 89). In determining the proper construction of s 18(1), the court is required to give effect to the purpose of the legislature as expressed in the language of the provision, with due regard to the statutory context in which it appears. In my opinion the construction of the provisions in Div 1, Pt 3 of the Act is a relatively straight forward task, as the language of the legislature is plain and unambiguous. 8The mandatory requirements for the contents of a valid offer to make amends are found in s 15(1). It contains nothing which precludes a publisher from including as a term thereof a limitation of time for acceptance. In this context, it is reasonable to expect that had it been the intention of the legislature to require that an offer to make amends must be left open for acceptance at any time after it was made, it would have expressly so provided. In my opinion, the absence of such a provision is a clear indication that no such requirement was intended. 9Section 18(1) enacts a defence to an action for defamation on the ground that the aggrieved person had not accepted an offer by the publisher to make amends. Sub-paragraphs (a), (b), and (c) spell out the conditions which the publisher is required to fulfil in order to establish the defence. 10Section 18(1)(b) imposes a condition the fulfilment of which requires the publisher to show, on acceptance of the offer, that it was ready and willing at any time before the trial to carry out the terms of the offer. It is tolerably plain that the issue of the publisher's willingness to carry out the terms of the offer only arises on the hypothesis that the offer which it made had been accepted. Put another way, what the publisher is required to show is that it was ready and willing to carry out the terms of the offer had it been accepted. In my opinion, upon its proper construction, sub-par (b) has no application to the terms of the offer which was not accepted. The requirements as to terms are separately and comprehensively provided for in s 15. 11Section 18(1)(c) imposes a condition the fulfilment of which requires the publisher to show that in all the circumstances the offer was reasonable. The task for the court under this sub-paragraph would ordinarily involve consideration of the reasonableness of the terms of the offer which was not accepted, which would include any term which limits the period within which it was open for acceptance. 12In my opinion, upon their proper construction, neither s 15, s 18, nor the other provisions in Div 1, Pt 3 of the Act, have the effect of precluding a defence based on the non acceptance of an offer to make amends which includes a term limiting time for acceptance by the aggrieved person. It follows that an offer to make amends which includes a term limiting time for acceptance may be relied upon by a publisher for the purpose of a defence under s 18(1) of the Act. Any issue arising from such a term will fall for consideration by the court under s 18(1)(c) in determining whether, in all the circumstances, the offer was reasonable. 13In Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 the Queensland Court of Appeal considered the scope and application of the equivalent provisions in the Defamation Act 2005 (Qld). For present purposes it is sufficient to refer to the following passage from the judgment of Applegarth J, with which I respectfully agree: "101 ... Division 1 does not prescribe times within which an offer must remain open for acceptance, or the time within which it must be accepted or "not accepted" (the term used in s 18(1)). There appears to be no reason why an offer to make amends may not be expressed to remain open for acceptance for a limited period. Section 18(1)(b) contains as an element of the defence that "at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer". That provision does not mandate that an offer to make amends must remain open for acceptance until trial. 102 Leaving an offer to make amends open for acceptance for an unreasonably short period may prevent a defendant from establishing a s 18 defence because the offer will not have been reasonable in all the circumstances. A defendant may choose to leave an offer to make amends open for an undefined period, or seek to bring resolution of the matter to an early conclusion by fixing a reasonable time within which it will remain open for acceptance. In the latter case, if the offer is not accepted within the specified time then it will have been "not accepted" or "refused", potentially engaging a s 18 defence. In the former case, an offer to make amends may be "not accepted" by words or conduct, or both. It is arguable that conduct in commencing proceedings will indicate that an offer is "not accepted". If it does not have this effect, or if the defendant is in any doubt about the matter, then the offer may be withdrawn pursuant to s 16(1). ... 104 In summary, in the absence of time limits imposed by the Act or time limits imposed by one of the parties, an offer to make amends may generate protracted negotiations. These negotiations may be brought to an end by formal acceptance or rejection of the offer, the commencement of proceedings (which may be interpreted as a rejection of the offer) or the withdrawal of the offer. Division 1 does not require parties to conclude negotiations within a specified time. However, a potential plaintiff who chooses to continue negotiations rather than to commence an action within time runs a substantial risk that the court will not be satisfied that an extension of time should be granted." 14For these reasons I find that the challenge to the defence is misconceived. It is not necessary for the fulfilment of s 18(1)(b) that the offer is one which is open for acceptance at any time before the trial. Sub-paragraph (b) is concerned with an entirely different matter, namely whether the publisher was ready and willing to carry out the terms of the offer, on acceptance, at any time before the trial. For these reasons the plaintiff's application to strike out par 4 of the defence should be dismissed.