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

The relevant principles of law

1. 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].
2. 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.
3. 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))."
4. 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."
5. 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.

The statements of claim nominating the wrong defendants are filed and served

1. By way of general overview, the plaintiff's series of mistakes in the Nine proceedings started with the use of the wrong ABN number for the originally named defendant (the company to which the concerns notice had been sent, and which had made a settlement offer). This meant that JusticeLink (which correlates ABN numbers with the relevant data base) rejected the document, according to the JusticeLink entries. This then resulted in a last-minute change in the court registry, authored by the plaintiff's solicitor, to the currently named defendant, in order for the document to be filed before the imminent expiry date, with the result that the names of both of these companies appear in the statement of claim. This event alone is enough to constitute a "mistake" as to name in the Nine proceedings, although in fact neither company turned out to be the correct company.
2. The filing of the ARN proceedings incurred no such difficulties, but the defendant in those proceedings, unlike the defendant in the Nine proceedings, took some months to appreciate that the correct company had not been sued.
3. Over the following three months, each of these defendants not only filed an appearance but also brought an application for summary dismissal of the proceedings under proportionality principles: Josh Massoud v Harbour Radio Pty Limited; Josh Massoud v Fox Sports Australia Pty Limited; Josh Massoud v Australian Radio Network Pty Limited; Josh Massoud v Nine Entertainment Co Holdings Limited; Josh Massoud v Nationwide News Pty Limited [2019] NSWDC 403. In addition, in the Nine proceedings, the defendant on the record even made a settlement offer. A chronology for each of these proceedings is as follows.

The Nine proceedings

1. 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.

1. 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).
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

The ARN proceedings

1. 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.

1. As the above chronology shows, a concerns notice was sent on 6 March 2019 and a request for particulars sought, which was treated as a further particulars notice pursuant to s 14(3) Defamation Act 2005 (NSW). A notice of appearance was filed and argument then proceeded on the summary dismissal application which was heard by Mahony SC DCJ on 11 July 2019 and resulted in judgment on 9 August 2019. It is common ground that the question of whether the correct defendant had been sued was not raised.
2. On 30 August 2019, the solicitors for the defendant, Australian Radio Network Pty Ltd, advised that another company, the Commonwealth Broadcasting Corporation Pty Ltd, was the entity that broadcast the matter complained of.
3. Mr O'Connell deposes to having googled KIIS FM106.5 and seen a search page result to the effect that the owner of the radio station was Australian Radio Network. He thought that this was the company which was liable for the broadcast the subject of these proceedings.
4. This is factually incorrect, but it says much for the uncertainty as to the correct corporate identity that not only the plaintiff's solicitors, but also the defendant's solicitors, were unaware of which company was liable for the broadcast for some months.
5. It is clear from the affidavit of Mr O'Connell that the plaintiff was intending to sue a company identified by a particular description, namely the company liable for the broadcast, but was mistaken as to the name of the company who answered that description.

Conclusions as to evidence of "mistake"

1. In Bridge Shipping Pty Ltd v Grand Shipping SA, there was a clear distinction between the liability of the owner of the vessel and the company to which it was chartered. The plaintiff's error was in suing the owner and not a mistake in the name of the party to be sued. It is relevant to note, in relation to that application, that those were proceedings in contract and tort, and not for defamation.
2. In the present case, both the statements of claim and affidavit evidence make clear that the plaintiff's intention was to sue the publisher of the matter complained of, which persons were sought to be identified from online documents which purported to identify those persons. The plaintiff's solicitor was encouraged to believe, by the response of those corporations to correspondence before the limitation period expired, that he had contacted the correct corporations.
3. Although the wrong corporate entity was sued in both cases, the plaintiff, through his solicitors, intended to sue a person or entity which met the description of the publisher of the matter complained of. Thus, Gordon J's first question, did the plaintiff intend to sue the newly named defendant (as the publisher), may be answered "yes" in each of these proceedings.
4. The second question, namely whether the plaintiff mistakenly believed the identity of the person was the named defendant who was originally sued, is again clearly to be answered "yes". The only reason that party was sued in each case was that the plaintiff believed it was the correct name of the party which was the publisher of the matter complained of. Accordingly, the grounds for making orders pursuant to s 65 Civil Procedure Act 2005 (NSW) are established.

Exercise of discretion

1. The defendants submit that substitution should nevertheless be declined as a matter of discretion.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. Taking the above into account, all of the discretionary factors point to the granting of leave to amend.

Costs and the form of the orders to be made

1. I was not addressed on the issue of costs which in s 65 applications do not necessarily follow the event. It is sometimes said that the granting of such leave is an indulgence, and I particularly note the costs order made by Brereton J in In the matter of RCG CBD Pty Ltd. I will accordingly grant the parties liberty to apply.
2. The orders sought by the plaintiffs are for a discontinuance against the existing defendant and the joinder of the proposed new defendant.
3. The order generally made is one for substitution of the correct defendant, and in this regard I note orders for substitution were made, for example, by Brereton J in In the matter of RCG CBD Pty Ltd.
4. The purpose of s 64 and its language suggest that this is the appropriate order to make. I intend to follow in his Honour's lead. If that is unacceptable to the parties, they have liberty to apply.

Orders 1. Pursuant ss 64(2) and 65(2)(b) Civil Procedure Act 2005 (NSW), Commonwealth Broadcasting Corporation Pty Limited (ABN 44 000 019 796) be substituted as the defendant in place of Australian Radio Network Pty Limited (ABN 95 065 986 987) in proceedings 2019/133979. 2. Pursuant ss 64(2) and 65(2)(b) Civil Procedure Act 2005 (NSW), Nine Digital Pty Limited (ABN 33 077 753 461) be substituted as the defendant in place of Nine Entertainment Co Holdings Limited (ABN 60 122 203 892) in proceedings 2019/134011. 3. Costs reserved. 4. Liberty to apply. 5. Matter stood over to the Defamation List on Thursday 19 March 2020 for further directions consistently with the plaintiff's other defamation proceedings, with liberty to the parties to bring in Short Minutes of Order for an appropriate timetable. **********​ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2019