Massoud v Australian Radio Network Pty Limited; Massoud v Nine Entertainment Co Holdings Limited - [2019] NSWDC 708 - NSWDC 2019 case summary — Zoe

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Massoud v Australian Radio Network Pty Limited; Massoud v Nine Entertainment Co Holdings Limited

[2019] NSWDC 708

District Court of NSW|2019-11-21

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At a glance

Source facts

Court

District Court of NSW

Decision date

2019-11-21

Catchwords

Josh Massoud v Fox Sports Australia Pty Limited
Josh Massoud v Australian Radio Network Pty Limited
Josh Massoud v Nine Entertainment Co Holdings Limited

Source

Original judgment source is linked above.

Catchwords

Josh Massoud v Fox Sports Australia Pty LimitedJosh Massoud v Australian Radio Network Pty LimitedJosh Massoud v Nine Entertainment Co Holdings Limited

Judgment (11 paragraphs)

[1]

The parties' applications

The plaintiff seeks leave in each of these proceedings to file an Amended Statement of Claim discontinuing proceedings against the current defendant and to join a new defendant in each proceeding as follows: 1. In proceedings 2019/133979 (hereafter referred to as "the ARN proceedings"): Commonwealth Broadcasting Corporation Pty Limited (ABN 44 000 019 796) in place of Australian Radio Network Pty Limited (ABN 95 065 986 987); 2. In proceedings 2019/134011 (hereafter referred to as "the Nine proceedings"), Nine Digital Pty Limited (ABN 33 077 753 461) in place of Nine Entertainment Co Holdings Limited (ABN 60 122 203 892).
The publication dates for each of the matters complained of are 3 May 2018 (the Nine proceedings) and 4 May 2018 (the ARN proceedings). The limitation period in each action has accordingly expired.
The defendants submit that leave should not be granted by reason of s 14B Limitation Act 1969 (NSW) (written submissions, paragraph 4).
The plaintiff relies upon s 65(2)(b) Civil Procedure Act 2005 (NSW), which applies to "a mistake in the name of a party to the proceedings", which is "neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party". The discretion of the court is invoked by s 65(2)(b), which must be exercised in accordance with ss 56-58 and 64(2) Civil Procedure Act 2005 (NSW): Greenwood v Papademetri [2007] NSWCA 221 at [35].

[2]

The relevant principles of law

Both parties rely upon the principles set out in Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 and, in particular, to the observations of McHugh J at 259-261 (with whom Brennan and Deane JJ agreed). More recently, these principles have been helpfully analysed by the New South Wales Court of Appeal in Mitry v Business Australia Capital Finance Pty Ltd (in liquidation) [2010] NSWCA 360 at [41]-[45].
The plaintiff failed in Bridge Shipping Pty Ltd v Grand Shipping SA because the court concluded, on the facts of that case, that the plaintiff had not in fact made a mistake in the defendant's name, but had intended to sue the party which was in fact sued, on the basis that it was liable as the owner. The mistake was therefore not in the name of the party, but in identifying who was liable. The defendants submit that the same factual dispute arises here, while the plaintiffs assert that the question is one of nomenclature.
The "two questions" for the court to ask in applications such as the present are set out by Gordon J in Environinvest Ltd (recs and mgrs apptd) (in liq) v Former partnership of Webster, White, Gridley, Nairn, Newman, Peters and Miller t/as HLB Mann Judd (Vic Partnership) (2012) 208 FCR 376 (hereafter "Environinvest") as follows: "[22] One way of seeking to determine whether Environinvest's application properly falls within r 8.21(1)(c) or r 8.21(1)(d) of the FCR is to ask two questions. First, did Environinvest intend to sue its auditor? Second, if so, did it mistakenly believe that the identity of the auditor was the Corporate Entity? In substance, these were the questions posed in Bridge Shipping: see esp at 260-2 adopted at 234. In the present case, the answers to those questions are straightforward: "yes" and "yes" respectively. As mentioned above, there was no dispute that Environinvest intended to sue its auditor. The Partnership accepted that, if Environinvest mistakenly believed that the Corporate Entity was its auditor, then the case would appear to fall within r 8.21(1)(d). The Partnership qualified that submission, however, with a contention that Mr Barrett's affidavit evidence made it difficult to reach a firm conclusion on that question. I reject that contention. As the evidence considered above demonstrates, Mr Barrett was plainly mistaken as to the identity of Environinvest's auditor. Environinvest made a mistake in the "identity of a party". Environinvest should be granted leave to "to correct the identity of a party to the proceeding" (r 8.21(1)(d))."
The power to grant leave to amend is a remedial rule, and thus which should be given a beneficial interpretation, namely "the widest interpretation which its language will permit": Bridge Shipping Pty Ltd v Grand Shipping SA per McHugh J at 260-261. This point was stressed by the Court of Appeal in Mitry v Business Australia Capital Finance Pty Ltd (in liquidation) where Macfarlan JA, distinguishing Bridge Shipping Pty Ltd v Grand Shipping SA on the facts, added: "43 I do not consider that this decision dictates a conclusion that leave should have been refused in the present case. The present is a different case to Bridge Shipping. Here the liquidator, in exercise of the power conferred upon him by s 477(2)(a) Corporations Act, purported to bring the action "on behalf of the company". What he failed to do was to bring the action "in the name ... of the company" as s 477(2)(a) also specifies. This was truly "a mistake in the name of a party" in the sense contemplated by s 65(2)(b). True it is that in strict terms the effect of the amendment was to substitute a new party, that is, to substitute the company for the liquidator, but that is a circumstance expressly permitted by s 65(2)(b). 44 The subsection specifically contemplates that an amendment to correct the name of a party may be one that substitutes a new party for an existing one. If the present is not a case of the type contemplated in the subsection, it is very difficult to contemplate one that would be."
In Mitry v Business Australia Capital Finance Pty Ltd (in liquidation), there was no express evidence as to how the proceedings came to be formulated in the way that they were, as Macfarlan JA noted at [48]. However, in the present case, there is extensive evidence of not one but a series of mistakes, not merely by the plaintiff but by each of the defendants in both proceedings, a history of which is set out below.

[4]

The Nine proceedings

The parties have provided the following agreed chronology: 3 May 2018 The defendant placed on the internet an online article on the Wide World of Sports website which is alleged to be defamatory of the plaintiff. 6 March 2019 The legal representatives of the plaintiff forwarded a concerns notice to Nine Network Australia Pty Ltd 24 Artarmon Road Willoughby NSW 2068. Affidavit of Stewart O'Connell 12 September 2019 Paragraph [5] 22 March 2019 Chris Morrow, Corporate Counsel, Nine Network Australia PO Box 27, Willoughby NSW 2068 responded to the concerns notice. Affidavit of Stewart O'Connell 12 September 2019 Annexure A 30 April 2019 The legal representatives for the plaintiff caused a statement of claim to be filed naming Nine Network Australia Pty Ltd ABN 60 122 203 892. The name of the defendant as entered in the Court's system was Nine Entertainment Co Holdings Limited due to the ABN which was the ABN of that entity. Affidavit of Stewart O'Connell 12 September 2019 Paragraph [7] 21 May 2019 Chris Morrow, Corporate Counsel, Nine Network Australia PO Box 27, Willoughby NSW 2068 wrote to the legal representatives for the plaintiff and noted that the "named defendant in the Statement of Claim is both inconsistent and inappropriate" and that the proper entity to respond to this claim "would likely be": Nine Digital Pty Ltd ACN 077753461 and seeking urgent advice as to whether the plaintiff will be amending its pleadings in light of the above. Affidavit of Stewart O'Connell 12 September 2019 Annexure B 27 May 2018 Chris Morrow, Corporate Counsel, Nine Network Australia PO Box 27, Willoughby NSW 2068 wrote to the legal representatives for the plaintiff - referring to the Statement of Claim filed on 30 April 2019, advising that he acted on behalf of Nine Entertainment Co Holdings Limited and enclosing a Notice of Appearance and a Notice to Admit Facts - both documents filed in the proceedings. Affidavit of Stewart O'Connell 12 September 2019 Annexure C 29 May 2019 The legal representatives for the plaintiff replied to the correspondence from Chris Morrow, Corporate Counsel, Nine Network Australia PO Box 27, Willoughby NSW 2068 referring to the letter of 21 May 2019 advising that they 'took' accepted the point raised in Mr Morrow's correspondence of 21 May 2019 and would amend the statement of claim and referring to a number of other matters with respect to a proposed application by the defendants to have the proceedings summarily dismissed. Affidavit of Stewart O'Connell 12 September 2019 Annexure D 30 May 2019 These proceedings were listed for first directions at 10am with a number of other proceedings initiated by the same plaintiff. Orders were made on this date for the exchange of evidence and submissions in respect of the respective defendants' summary dismissal application. 10 July 2019, A defence was filed by the defendant named as NINE ENTERTAINMENT CO HOLDINGS LIMITED ABN 60122203892 which included a denial of publication at paragraph 2 and paragraph 3 of the defence. 11 July 2019 Dismissal argument was heard before his Honour Mahony SC DCJ 9 August 2019 Judgment. The defendants' application was dismissed with an order that the defendants are to pay the plaintiff's costs. 9 August 2019 The Court ordered by consent, inter alia, that the Plaintiff serve any proposed Amended Statement of Claim by 23 August 2019 14 August 2019 The Plaintiff filed and served an Amended Statement of Claim naming Nine Digital Pty Ltd ACN 077 753 461 and Nine Entertainment Co Holdings Limited as defendants. 5 September 2019 The Court ordered by consent, inter alia, that the Plaintiff serve (but not file) a proposed Amended Statement of Claim. 12 September 2019 The Plaintiff served a proposed Amended Statement of Claim naming Nine Digital Pty Ltd ACN 077 753 461 as the defendant.

[5]

As pages 9 and 10 of annexure A to the affidavit of Corey David Jankie sworn 25 September 2019 demonstrate, both the name "Nine Entertainment Co Holdings Ltd" and "Nine Network Australia Pty Ltd" appear in the statement of claim. Both have the same ABN number, which clearly cannot be correct. Mr Molomby SC and Ms Goodchild informed me from the bar table that the change of name occurred in the registry and assert that this was done by the court registry (written submissions, paragraph 11).
The JusticeLink entry, which was made available to the parties for the purpose of this application, identifies the plaintiff's solicitor as having made the change.
As the parties did not appreciate until part way through the application that the name change has something to do with the same ABN number being given for both entities, all that can be said is that a mistake occurred. The plaintiff had intended to commence proceedings against Nine Network Australia Pty Ltd, the company upon whom the concerns notice was served and which had responded to that concerns notice by making an offer.
The letter from Mr Morrow, corporate counsel for Nine Network Australia, dated 21 May 2019 described the defendant "Nine Entertainment Co Holdings Ltd" as "both inconsistent and inappropriate" and suggests that the proper entity "would likely be" another company, Nine Digital Pty Ltd ACN 077 753 461. However, a notice of appearance was filed and the response to the letter of 21 May 2019 concerning a proposed amended statement of claim (sent on 29 May 2019) was overtaken by the application for summary dismissal for which judgment was given on 9 August 2019. It is not in dispute that there was no argument in the proceedings before Mahony SC DCJ that the wrong company had been sued.
Answering the two questions posed by Gordon J in Environinvest, it is clear that the plaintiff's legal representatives were mistaken as to "the identity of a party". Ms Barnett did not submit that any amendment should be restricted to correcting the name to Nine Network Australia Pty Ltd. Her submission is that the solicitor for the plaintiff wished to sue the "owner", given the language employed by the plaintiff's solicitor in his affidavit, and that the facts of this case are the same as Bridge Shipping Pty Ltd v Grand Shipping SA.
I do not accept this submission. Nothing could be clearer than that the plaintiff intended to sue the company liable for the publication. The question is whether, given the obvious error in the defendant's name in any event, the court should exercise its discretion to permit the joinder of the agreed correct defendant.

[6]

The ARN proceedings

The parties have reduced the history of these proceedings to the following agreed chronology: The ARN proceedings - Australian Radio Network Pty Ltd 4 May 2018 The defendant published by broadcast on the radio station KIIS 106.5 FM statements which are alleged to be defamatory of the plaintiff. 6 March 2019 The legal representatives of the plaintiff forwarded a concerns notice to Australian Radio Network, 3 Byfield Street, Macquarie Park 2113 NSW. Affidavit of Stewart O'Connell 12 September 2019 Paragraph [6] 26 March 2019 Bruce Burke, Partner at Banki Haddock Fiora Lawyers wrote to the legal representatives for the plaintiff and advised them that he acted for the Australian Radio Network Pty Ltd and he sought "further particulars of the material relied on about the imputation of concern". By this correspondence, Mr Burke invited the legal representatives of the plaintiff to treat the letter as a further particulars notice pursuant to section 14(3) of the Act. Affidavit of Stewart O'Connell 12 September 2019 Annexure A 30 April 2019 The legal representatives of the plaintiff caused a statement of claim to be filed naming AUSTRALIAN RADIO NETWORK PTY LIMITED ABN 95064985987 as defendant. Affidavit of Stewart O'Connell 12 September 2019 Paragraph [8] 15 May 2019 Bruce Burke of Banki Haddock Fiora caused to be filed a Notice of Appearance for the named defendant Australian Radio Network Pty Limited ABN 95065986987. 28 May 2019 The legal representatives for the plaintiff received a letter from Mr Bruce Burke of Banki Haddock Fiora advising that the defendant intends to apply for an order that the proceedings be summarily dismissed based upon 2 identified bases. Affidavit of Stewart O'Connell 12 September 2019 Annexure B 30 May 2019 These proceedings were listed for first directions at 10 am with a number of other proceedings initiated by the same plaintiff. Orders were made on this date for the exchange of evidence and submissions in respect of the respective defendants' summary dismissal application. 11 July 2019 Dismissal argument was heard before his Honour Mahony SC DCJ 9 August 2019 Judgment. The defendants' application was dismissed with an order that the defendants are to pay the plaintiff's costs. 9 August 2019 The Court ordered by consent, inter alia, that the Plaintiff serve any proposed Amended Statement of Claim by 23 August 2019 30 August 2019 The legal representatives for the named defendant first advised the legal representatives for the plaintiff that Commonwealth Broadcasting Corporation Pty Ltd was the entity that broadcast the matter complained of. Affidavit of Stewart O'Connell 12 September 2019 Annexure C 5 September 2019 The Court ordered by consent, inter alia, that the Plaintiff serve (but not file) a proposed Amended Statement of Claim. 12 September 2019 The Plaintiff served a proposed Amended Statement of Claim naming Commonwealth Broadcasting Corporation Pty Limited ABN 44 000 019 796 as the defendant.

[9]

Exercise of discretion

The defendants submit that substitution should nevertheless be declined as a matter of discretion.
Before considering Ms Barnett's submissions, I note that there are significant discretionary factors supporting the position of the plaintiff in these proceedings which are common to other s 65 applications. In many cases where s 65 relief is granted, the wrong entity in a related group of companies has been sued, in circumstances where the party who seeks to be substituted has been on notice of the proceedings because of the relatively minor nature of the mistake in question: In the matter of RCG CBD Pty Ltd [2016] NSWSC 1938 at [12]. That connection is particularly strong in the present case, given the active conduct of the matter to date by the company which was in fact sued in each action.
Ms Barnet relied on the letter of 21 May 2019 as notice, but this is at best a "make your own inquiries" document. Unlike In the matter of RCG CBD Pty Ltd, where the company that was incorrectly sued "repeatedly" brought the plaintiff's attention to this circumstance by protesting it had no liability and where the plaintiff "pressed on regardless" (at [13]), the plaintiff had every reason to believe that companies answering concerns notices prior to the limitation period expiry were doing so because they were the correct company to sue. In fact, one or both of the defendants and their legal advisers were under the same misapprehension of fact for some time.
The third factor is that the limitation period has otherwise expired, unless advantage can be taken of s 65, in circumstances where the limitation provisions for defamation actions raise a high bar. I note observations to this effect by Brereton J (as Brereton JA then was) in In the matter of RCG CBD Pty Ltd at [14]. I was not addressed as to the prospects of success of any application for extension of time but, given the offer made on 22 March 2019 in the Nine proceedings, and the failure of both named defendants to advise that they were not liable prior to expiry of the limitation period, the plaintiff may well have succeeded in such an application.
That issue aside, the defendants do not point to any prejudice arising from their substitution at this stage beyond presumptive prejudice of the kind set out in State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146.
This is not a case where the defendants argue that they had in some way relied upon the expiration of the limitation period or no longer have evidence and, in those circumstances, it is clear that there is less than justice in granting the order sought than in refusing it.
Taking the above into account, all of the discretionary factors point to the granting of leave to amend.

Massoud v Australian Radio Network Pty Limited; Massoud v Nine Entertainment Co Holdings Limited

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Judgment (11 paragraphs)

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