Consideration
48 In our opinion, her Honour erred in failing to draw the inference that it was not reasonable in the circumstances for Mr Joukhador to have commenced an action in defamation within one year of the broadcast of 10 News First on 20 September 2017. Network Ten accepted that if that inference were drawn, there was no basis for the Court to refuse to exercise its discretion under s 56A(2) to extend the limitation period to 3 October 2019, when Mr Joukhador filed the originating application.
49 Noonan [2010] 2 Qd R 537 is the leading authority on the construction of s 56A of the Limitation Act, and its analogues in all the States and Territories except Western Australia and the Northern Territory (as Martin CJ identified in Rayney v The State of Western Australia [No 3] [2010] WASC 83 at [45]-[46]): see Barrett 96 NSWLR at 492-493 [69]-[72], 497-498 [95]-[97] per McColl JA, with whom Simpson and Payne JJA agreed on this issue (at 500 [108] and [110]); Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [34] per Fraser JA and see too at [87] per Applegarth J (who, although dissenting in the result, summarised the principles in Noonan [2010] 2 Qd R 537 that Mullins J, with whom Philip McMurdo JA and Douglas J agreed, approved in State of Queensland v O'Keefe [2016] QCA 135 at [21]. Payne JA, with whose additional reasoning Simpson JA agreed, also cited Applegarth J's summary with approval in Barrett 96 NSWLR at 501 [114]-[115]).
50 Relevantly, the claimant has the burden of proof under s 56A(2) to satisfy the court that, objectively, it was not reasonable in the circumstances for him or her to have commenced proceedings for defamation within one year of the publication: Noonan [2010] 2 Qd R at 541-542 [15]. That factual issue requires the court to examine "the circumstances" as they appear, objectively, to it, not as the claimant may have believed them to be. And, the consideration of what is reasonable in this context requires the court to have regard to the legislative intention that ss 14B and 56A express; namely, that unless it is not reasonable for the claimant to have commenced a defamation action within the one year limitation period, he or she will not be able to maintain the cause of action: Noonan [2010] 2 Qd R at 543 [20], [22]-[23].
51 A consideration of "the circumstances" includes the objective situation of the claimant. The question of what is not reasonable in the circumstances requires the court to evaluate all of the objective circumstances as a whole, not piecemeal. In the end, that evaluation is a question of fact, but the assessment proceeds by reference to the claimant's position and whether, objectively, it would not have been reasonable for him or her, in light of all of the circumstances, to commence the proceeding within one year of the publication complained of.
52 Where a person is facing a criminal charge, and the allegedly defamatory publication raises questions about his or her guilt or innocence that would be likely to cause any trial of, or interlocutory processes (such as discovery in the defamation claim) to be stayed, ordinarily, it will not be reasonable for him or her to commence civil proceedings of a kind that, realistically in the circumstances, could allow forensic examination of matters bearing on his or her guilt or innocence that could prejudice the claimant's defence of the criminal proceeding: see eg. Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 at 58-60 [36]-[44] per French CJ, Hayne, Kiefel, Bell and Keane JJ, where an analogous situation arose; see too Gregg v Fairfax Media Publications Pty Ltd [2017] FCA 440 at [15]-[21] per Rares J.
53 The Limitation Act does not evince an intention that, at all costs, a claimant must commence a defamation action within one year of the publication. The interests of justice, usually, will not require that a claimant commence, or continue with, a defamation action that raises issues concurrent with a criminal prosecution against him or her while there is a real risk of prejudice to his or her defence of the unresolved criminal charge: cf. Zhao 255 CLR at 59-60 [39], [43]-[44].
54 Thus, importantly, s 14B of the Limitation Act evinces the legislative intention that a defamation action must be commenced within one year of the publication of the matter complained of, in the context of the co-existence of the power conferred on the Court to extend that period for up to three years if the statutory criteria in s 56A can be satisfied.
55 It is safe to infer that Parliament was aware that defamation actions arise out of the way in which the media and others in our society, report, or misreport, the laying of criminal charges. Cases such as Lewis v Daily Telegraph Ltd [1964] AC 234, Mirror Newspaper Ltd v Harrison (1982) 149 CLR 293 and Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 are well known instances of a report that contains additional material that may go beyond a fair report of the hearing, or circumstances in which the claimant was charged, so as to impute, or be capable of imputing, not merely that there was a reasonable suspicion that he or she was guilty, but that, in fact, he or she was guilty,
56 Equally, Parliament would have been aware that, because of possible misreporting of that nature, a claimant may have to use his or her resources and energy to defend the criminal charges before being in a position to make it reasonable that he or she bring a defamation proceeding. Obviously, pursuant to s 42(1) of the Defamation Act 2005 (NSW), a conviction on the charge will be available to a publisher as conclusive evidence that the claimant committed the offence in order to support a defence of justification or contextual truth under ss 25 and 26 of that Act. The real possibility of a conviction, at the time of publication (especially one contemporaneous with the institution of a criminal proceeding), will often mean that it would not be reasonable for a claimant to begin a defamation action that raises, or is likely to raise, a concurrent issue of his or her guilt or innocence, when that issue will be concluded, in both the criminal and civil proceedings, adversely against him or her if convicted.
57 Moreover, in selecting the criteria in s 56A(2), Parliament would have been conscious that any litigation imposes strain upon the litigants, especially individuals (as Gummow, Hayne, Crennan, Kiefel and Bell JJ recognised in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 214 [100]-[101]), and that such strain is, as a matter of common sense, likely to be the greater where an individual's liberty is potentially at risk in a criminal proceeding. Likewise, Parliament would have been aware of the common law presumption of innocence for a person charged with a criminal offence, and of the compulsory processes ordinarily applicable in civil litigation, including requirements to give discovery, properly articulate one's case and give evidence, that often warrant the staying of concurrent civil litigation in which a party or witness is facing a criminal charge that may involve a real risk of prejudice to his or her defence of the charge: see eg Zhao 225 CLR at 58-60 [36]-[44] per French CJ, Hayne, Kiefel, Bell and Keane JJ; Gregg [2017] FCA 440 [15]-[21] per Rares J.
58 The matters discussed above are examples of questions that can arise in considering an application for an extension of the limitation period under s 56A. And, while the onus of proof on the claimant under s 56A(2) will only be discharged in relatively unusual circumstances, as Keane JA observed in Noonan [2010] 2 Qd R at 542 [15] and [17], there is no exhaustive list of the kinds of cases that will fall within the statutory criterion that the section prescribes.
59 The critical legislative consideration in that section is that the Court must be "satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced" (emphasis added) a defamation action during the one year limitation period. Thus, the question of what is "not reasonable in the circumstances" requires the court to weigh together all of the relevant circumstances that cohered to bring about the objective fact that the claimant did not sue within one year of the publication. The criterion in s 56A(2) requires the Court to consider "the circumstances" by weighing all of the evidence and "the weight which is to be given to the united force of all the circumstances put together": Belhaven and Stenton Peerage (1875) 1 App Cas 278 at 279 per Lord Cairns LC, whose reasoning Gibbs CJ and Mason J applied in Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 535, in a passage that Gummow, Hayne and Crennan JJ cited with approval in R v Hillier (2007) 228 CLR 618 at 638 [48].
60 As Lord Cairns LC advised the House of Lords, in a passage that reflects a similar direction still given to juries in assessing circumstantial evidence (Belhaven 1 App Cas at 279):
You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand, you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and, when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel.
61 Here, Mr Joukhador contended that the combined weight of each of the three factors which he identified established that it was not reasonable for him to have commenced the proceeding before he actually did. His case was that he was not aware of the matters complained of during the one year after the broadcast and, moreover, because of the significant emotional and physical reactions he experienced as a result of his arrest, the criminal charges themselves and their immediate and (while the charges remained on foot) enduring impact on his life and career, he was not in a position where he could begin fighting yet another significant battle.
62 Network Ten's argument that, in effect, Mr Joukhador had deprived it of the opportunity to test the evidence of his circumstances by relying on Mr Svilans' affidavit pursuant to s 75 of the Evidence Act was misconceived and a distraction. Network Ten could have made a request to Mr Joukhador that he call himself as a witness in accordance with s 166(c) and (e) of the Evidence Act. That is because, self-evidently, he was concerned in the production of the affidavit as it related to the previous representations in the information that he gave to Mr Svilans (s 167(a)). Had Network Ten made such a request and Mr Joukhador failed or refused to call himself without reasonable cause, her Honour could have exercised a power under s 169(1) to order him to be called as a witness or exclude any evidence the subject of the request. In Telstra Corp v Australis Media Holdings (unreported, NSWSC, McLelland CJ in Eq, 18 March 1997) BC9700773 at pp 2-3, McLelland CJ in Eq held that a party could make a request under ss 166(c), (d) and 167 on an interlocutory application that a person be called as a witness who was the source of hearsay evidence given pursuant to s 75. Had Network Ten wished to challenge the credibility of the information that Mr Joukhador gave to Mr Svilans, it could have done so by making such a request. It did not do so. Accordingly, his evidence should be considered as unchallenged, albeit subject to an assessment of its weight.
63 We were satisfied that, taking the evidence as a whole (even allowing for the fact that it may not have been expressed as clearly or precisely as it could have been), the impact of the charges, their sequel, and the personal consequences for Mr Joukhador, together with his statement that he was not capable of fighting on any other front until those matters were resolved, provided a sufficient direct and inferential explanation for his decision not to take any action in defamation about material that may have been published about him. It was not reasonable, in those circumstances, that he take on a new case until he had dealt with the criminal charges and the suspension of his practising certificate. To the extent that her Honour found that these factors did not amount to a sufficient impediment to his commencing a defamation action earlier, we consider that she should have drawn the inference that they did.
64 Mr Joukhador's evidence disclosed that the remarks made by his friends and mother when they mentioned the institution of the criminal charges also indicated that there may have been some publication in connection with those charges that raised matters apparently extraneous to them, namely the staging of accidents, making millions and paying more for CTP insurance. In this context, there was a degree of overlap between any such publication and the charges. That is because of the apparent link that those who spoke to him drew or conveyed between the extraneous matters and the institution and content of the charges that arose apparently from the one source coupled with his understanding that there had been publicity in the media about the charge.
65 In our opinion, her Honour erred in finding that there was no evidence that the question of overlap between the subject matter of the criminal proceeding and any potential defamation action formed any part of Mr Joukhador's reasons for not taking proceedings against Network Ten. Mr Joukhador was overwhelmed by the weight of the criminal charges and other circumstances confronting him. Of course, he did not know of the broadcast or other matters complained of; however, as the evidence made pellucid, he knew that the conversations with his friends and mother, that the primary judge said had put him on notice of the possibility of such a publication, were made in direct connection with his being charged. And, because of that direct connection, litigating about the subject matter of any such publication necessarily would involve an overlap between the criminal and civil proceedings and, what Mr Joukhador considered with every justification, would then be a fight on another front. However, as a matter of common sense, on the evidence set out at [21] above, it is safe to infer that Mr Joukhador was so concentrated on, and overwhelmed by, the criminal charges and other immediate crises that he was facing that he decided that, until those issues in his life resolved, he could, and would, not look at or investigate the possibility of taking a proceeding in defamation in respect of any publication that might have been connected to the charges.
66 Her Honour concluded, on the basis of Network Ten's correct concession, that, had Mr Joukhador found the matters complained of and brought a proceeding on them within one year of the broadcast, it was likely that the action would have been stayed because of the objective overlap of subject matter between the criminal and civil proceedings. It is difficult to see how the immediate institution of a defamation action that was likely, but not certain, to be stayed would serve the legislative purpose of requiring a claimant to bring such an action timeously in light of Parliament's awareness that, in situations such as that which faced Mr Joukhador, it would be expected to be stayed so that the criminal matter would take precedence.
67 In all the circumstances, it was not reasonable for Mr Joukhador to have commenced the proceeding against Network Ten earlier than he did. He was facing a serious criminal prosecution. His practicing certificate was suspended until, at least, the prosecution came to an end. That had an immediate impact on him professionally and financially. His firm's clientele shrank very significantly. He was already in the throes of separation from his wife, and the prosecution had put their reconciliation in doubt. He was experiencing suicidal thoughts, suffering from reflux and vomiting on most mornings for about 18 months, all being objective matters for which medical evidence was neither necessary, nor in all probability would add very much. Her Honour admitted, as lay evidence of his condition (see s 66A of the Evidence Act), Mr Joukhador's description of himself as being depressed and not feeling capable of undertaking any other litigation or dealing with fighting defamation proceedings if it transpired that he had a cause of action.
68 In our opinion, it was not reasonable in those circumstances for Mr Joukhador to embark on the investigation and pursuit of a possible action in defamation that his emotional state could not cope with or support. Moreover, to the extent that there was an overlap between the statements made by his friends and mother and the charges he was facing, that would make it highly likely that he would be exposed to further, significant, strain, with which he felt he could not cope, if he embarked on a defamation action while the criminal charges were unresolved. It was objectively justifiable for Mr Joukhador to act as he did, namely, to focus his efforts on dealing with the criminal charges and recovering his practising certificate, and to put to one side the investigation and pursuit of any defamation action arising out of reporting about the criminal charges until after those matters, that profoundly affected his liberty, peace of mind and the practice of his profession, had resolved: cf. O'Keefe [2016] QCA 135 at [33]-[34] per Mullins J, with whom Philip McMurdo JA and Douglas J agreed.