Breach of duty
110In case my conclusion on that issue is wrong, it is appropriate to consider the issue of breach of duty. The case pleaded by Mr Moss was that Mr Eagleston should have advised him on the cause of action in defamation and should have included the three additional causes of action in the statement of claim. However, Mr Moss's submissions did not grapple with the merits of those claims. Rather, the case implicitly assumed that, whatever the merits of the other causes of action, it was negligent not to include them in the pleading.
111In my view, it cannot have been negligent not to include in the pleading any cause of action which was not reasonably arguable on the material before the solicitor.
112Neither party led any expert evidence at the hearing. Accordingly, I must make my own assessment of that issue, doing the best I can on the limited evidence before me.
113Mr Eagleston contends, in effect, that the defamation claim was hopeless because it was statute-barred by the time Mr Moss approached Reimer Winter Williamson in early 2007 (paragraph 10 of the defence to the amended statement of claim). It is undoubtedly correct that the claim was statute-barred. The articles were published on 27 and 28 July 2005. The limitation period for an action in defamation was (and still is) one year: see s 14B of the Limitation Act 1969.
114However, it is necessary to consider whether Mr Moss had any prospect of obtaining an extension of that limitation period. In respect of that issue, Mr Curtin relied on the decision of Beech-Jones J in Ritson v Gay & Lesbian Community Publishing Ltd & Ors [2012] NSWSC 483. In that circumstance, I also drew Mr Moss's attention to my decision in Houda v State of New South Wales [2012] NSWSC 1036, in which I had applied Ritson. On the strength of those authorities, Mr Curtin submitted that Mr Moss's prospect of obtaining an extension of the limitation period was next to zero (T169), a contention well supported by those authorities.
115During the course of writing this judgment, I realised that those decisions were concerned with the wrong test, being applications of s 56A of the Limitation Act as presently in force. Mr Moss's causes of action accrued on 27 and 28 July 2005. At that time, as now, there was power under the section to extend the limitation period to a period of up to three years running from the date of publication. However, the statutory test for determining whether an extension should be granted has changed. The test considered in Ritson was introduced by the Defamation Act 2005, which commenced on 1 January 2006 (see section 2 of the Act). The old provision continued to apply after the commencement of the Defamation Act 2005 to any cause of action that accrued before the commencement of that Act: see clause 7(3) in schedule 5 of the Limitation Act.
116The hearing thus proceeded on the incorrect premise that Mr Moss would have had to satisfy the new test, which is very draconian. It requires a plaintiff to establish that it was not reasonable in the circumstances for him to have commenced an action within one year and there is no power to make an order unless the court is so satisfied. In truth, under the test applicable to Mr Moss, he would only have had to satisfy the court that it was just and reasonable to extend the limitation period. As at 27 and 28 July 2005, the section provided:
(4) After hearing such of the persons likely to be affected by the application as it sees fit, the court may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines. However, the court cannot extend the period beyond 3 years running from the date on which the defamatory matter concerned was published.
117Accordingly, any application for an extension to the limitation period would not have been governed by the decision in Ritson. Since neither party had been heard on the issue of Mr Moss's prospect, as at February 2007, of obtaining an extension of the limitation period applying the old test, which was considerably more lenient, I considered it necessary to afford the parties that opportunity.
118Mr Curtin provided supplementary written submissions dated 30 January 2014. Those submissions repeated the contention that the prospects were "nil or very low, say 10%" but did not grapple with the point raised, which was the fact that the hearing had proceeded on an incorrect premise as to the applicable test and the opportunity to address Mr Moss's prospects under the correct test.
119Mr Moss also provided further submissions (in a series of emails). His first point was that the question of the applicable test does not arise, since the defence was run on a different basis (that he had told Mr Eagleston the articles were true)(emails dated 22 and 23 January 2014). That does not obviate the need for me to consider this issue.
120In separate emails dated 22, 24 and 28 January 2014, Mr Moss appeared to contend that the defendant's submission as to the cause of action being statute-barred was foreclosed by the decision of the Court of Appeal in Moss v Eaglestone [2011] NSWCA 404. Mr Moss evidently understands that decision to have entailed an unqualified determination that he could proceed with his defamation action. That is a misconception as to the effect of the decision, which was confined to the question whether prosecution of the action was foreclosed by Mr Moss's bankruptcy. The Court did not purport to address any other issue concerning the merit of the action.
121Mr Moss's evidence did not address his reasons for not commencing an action within the limitation period. However, in his closing submissions, he explained that he had tried to pursue a claim in defamation in 2005 but had been advised by a solicitor and a barrister that his criminal history "would probably be a problem" (T176.38). He said that, between the time when he saw that solicitor and the time when he approached Reimer Winter Williamson, he "tried many solicitors" to take on the case and that nobody would help him. He said that he had subsequently learned that having a criminal record was not necessarily an impediment to recovering damages for defamation. Although that explanation was provided only from the bar table, there was no objection to my having regard to it.
122The evidence and Mr Moss's submissions reveal that, during the limitation period, he was aware of the publication and the identity of the publisher; that he considered commencing proceedings; that he obtained legal advice and that he did not sue. However, it appears that the content of the advice (concerning the relevance of the criminal record) contributed to his decision not to sue and that subsequent advice was to a different effect. The criminal record was not an impediment to success on the imputations considered below. It was potentially relevant to damages, depending on the evidence at the trial, but it did not foreclose the prospect of a substantial verdict. Further, the two articles themselves are plainly defamatory (subject to any defences). I consider that there was a reasonable prospect of Mr Moss persuading a court to grant an extension of the limitation period under the old test (that it was just and reasonable to do so).
123Assuming (contrary to the conclusion I have reached) that Mr Eagleston was under a duty of care to give advice as to the cause of action in defamation, the advice that ought to have been given concerning the fact that the action was statute-barred is, in my view, to the effect set out above. The advice should, however, also have warned that there was an appreciable risk that the application would be unsuccessful and that Mr Moss would have to pay the defendant's costs.
124As to the merits of the underlying cause of action (leaving aside the problem with the limitation period), the advice ought to have considered whether the articles were defamatory and, if so, the likely success of any apparent defences.
125A reasonably competent person with specialised knowledge in the field of defamation would have advised Mr Moss that the articles were plainly defamatory of him and that the critical consideration was whether the imputations were defensible.
126As to the precise defamatory meanings conveyed by the articles, it is appropriate for present purposes for me to confine my attention to the meanings set out in the amended statement of claim filed 8 February 2012 in these proceedings, as follows:
a. The publication on 27 July in its natural and ordinary meaning was defamatory of the plaintiff and carried the following defamatory imputations:
i. The plaintiff demanded $250,000 for a story which he knew had no credibility.
ii. The plaintiff sought $1,000,000 for a reward to which he was not entitled.
iii. The plaintiff was a disreputable person seeking to make financial gain.
iv. The plaintiff could not be believed because he was a self-confessed criminal.
v. The plaintiff was untrustworthy as he was not believed by his own solicitor.
vi. The plaintiff could not be trusted because he was a small-time shyster.
b. The publication on 28 July in its natural and ordinary meaning was defamatory of the plaintiff and carried the following defamatory imputations:
i. The plaintiff demanded $250,000 for a story which he knew had no credibility.
ii. The plaintiff was a disreputable person seeking to make financial gain.
iii. The plaintiff lacked credibility because he was a convict who had served time in prison.
iv. The plaintiff was regarded by the Bali Chief Prosecutor in the Schapelle Corby case as not being a suitable witness to testify, having no credibility.
127Each of those imputations is probably or at least arguably conveyed. The more difficult task would have been to form a view as to the strength of any defence available to Nationwide News. The obvious defence would have been the defence of truth under s 15 of the Defamation Act 1974. Pursuant to that section, the publication of any defamatory imputation could be defended on the basis that the imputation was a matter of substantial truth and either related to a matter of public interest or was published on occasion of qualified privilege. The advice should have been that the newspaper would probably be able to establish that the imputations related to a matter of public interest. The more difficult question would have been to assess the newspaper's prospects of establishing that each imputation was a matter of substantial truth.
128It is difficult, on the strength of the limited evidence before me, to make a reliable assessment as to how that issue ought to have been assessed by a reasonably competent practitioner presented with Mr Moss's case in 2007. It may be noted that each of the imputations raises an issue directed to Mr Moss's credibility, reliability or trustworthiness. Mr Moss does have a record of criminal convictions (exhibit 2) and that certainly would have been a relevant consideration in assessing the strength of any truth defence in response to those imputations.
129However, it would also have been relevant to consider whether Mr Moss's version of events concerning the Schapelle Corby case was plausible. There is little evidence before me on that question. I did not find Mr Moss inherently implausible. But, had I been retained to give the advice it is now said ought to have been given, I would have insisted on having a lot more information than was placed before me in these proceedings, or else given heavily qualified advice.
130The contention Mr Moss has undertaken to prove in these proceedings is that it was negligent not to advise him that he had a reasonable prospect of success in a claim in defamation. On the strength of the limited evidence before me, I cannot be satisfied of that fact. That conclusion disposes of the separate contention that it was negligent not to include the cause of action in defamation in the pleading.
131As to the alleged negligence in failing to plead a cause of action in unconscionable conduct, Mr Moss gave no relevant evidence and made no submissions. He has not persuaded me that it was negligent not to include that claim in the pleading.
132The issue whether it was negligent not to include a cause of action in misleading or deceptive conduct is more difficult to determine. For the reasons already explained, I do not think Mr Eagleston assumed a duty of care to consider or plead all available causes of action. Rather, in my view, the task assumed by him was confined to pleading the cause of action articulated in the letter dated 6 February 2007 confirming Mr Moss's instructions. However, if that conclusion is wrong and a broader duty was assumed to include any cause of action available on the strength of the instructions recorded in that letter, in my view a reasonably competent practitioner faced with those instructions would have considered including an alternative claim in misrepresentation.
133The 15-page facsimile provided to Mr Eagleston by Mr Moss included an exchange of correspondence dated 28 October 2005 which clearly addressed the issue whether any representation had been made to Mr Moss that he would be paid for his information if a story was published.
134The instructions recorded in the letter dated 6 February 2007 included the following:
Once the Daily Telegraph found out about this they wanted to use it for a story and negotiations took place between yourself and the Daily Telegraph in relation to a fee of $250,000 for your story. The story was published by the Daily Telegraph however you never received your payment of $250,000.
135Those instructions were equally capable of flagging a potential claim in misrepresentation as in contract. However, there is simply insufficient evidence before me to conclude that any such claim had a reasonable prospect of success. Accordingly, I am not satisfied that there was any breach of duty.