Plaintiff v Defendant

Supreme Court of Victoria|2013-05-15|Before: BEACH J

DEFAMATION - Limitation of action - Extension of time application - Whether not reasonable in the circumstances for the plaintiff to have commenced proceeding within one year from date of publication - Limitation of Actions Act 1958, ss 5(1AAA) and 23B.

2 By a summons filed 24 April 2013, the plaintiff seeks an order pursuant to s 23B of the Limitation of Actions Act that the limitation period be extended, nunc pro tunc, to 27 March 2013 (being the date upon which the proceeding was commenced). The defendant opposes the plaintiff's application.

3 The plaintiff describes himself[1] as a well known and frequent caller to radio talkback programs, who has at all relevant times been the secretary to the People Yes Party. According to his affidavit in support of this application, on 2 July 2010, the plaintiff was listening to radio station 3LO when Jon Faine invited listeners to ring in to express their views on air about the then proposed mining tax.

4 In his statement of claim, the plaintiff alleges that the ABC published the following words of and concerning him:

Presenter: "John in Sandringham. Morning to you, John."

Mr Casley: "Oh, good morning, Jon. Look, er, the tax doesn't stop the profits being taken out by the bucketful every year and this is the enormous problem that's facing Australia."

Presenter: "It's John from Brighton, isn't it?"

Mr Casley: "Er, no; Sandringham."

Presenter: "Yeah, Brighton. It's John Casley. Good morning, how are you?"

Mr Casley: "Hello, Jon."

Presenter: "Have you moved?"

Mr Casley: "Ah, yes."

Presenter: "OK. Well, John from Brighton in Sandringham. But let's just be clear, your - umm - status with ABC talkback I don't think has changed, John"

Mr Casley: "Well, all I wanted to say was that the People Yes Party has a policy which puts a tax ..."

Presenter: "You're not welcome to come on and spruik a political party, and, John, owing to your repeated racist utterances on the program, as you well are aware, you have been banned. So John from Sandringham or John from Brighton, it's still the same guy."

5 The plaintiff alleges that these words were defamatory of him. Four false innuendos are pleaded as follows:

Mr Casley has been banned from ABC's Mornings with Jon Faine programme;
Mr Casley was a racist;

Mr Casley made repeated racist utterances on ABC's Mornings with Jon Faine programme;

Mr Casley had been banned from speaking on ABC's Mornings with Jon Faine programme owing to his repeated racist utterances.

6 The plaintiff's statement of claim concludes with a plea in respect of loss and damage and a claim for aggravated damages.

(1) A person claiming to have a cause of action for defamation may apply to a court for an order extending the limitation period for the cause of action.

(2) A court, on an application under subsection (1), must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 5(1AAA) to a period of up to 3 years from the date of the publication.

(3) A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2).

(4) If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.

(5) An order for the extension of a limitation period, and an application for such an order, may be made under this section even though the limitation period has already expired.

8 In his affidavit in support of his application, the plaintiff deposes to writing a letter to the defendant's management on the day of the broadcast. On 2 August 2010, the plaintiff received a reply to this letter. There was then further correspondence with the defendant.

9 On 20 August 2010, amongst other dates, the plaintiff wrote to the Australian Communications and Media Authority ("ACMA"). On 31 August 2010, ACMA responded as follows:

Dear Mr Casley

Thank you for your letters to the Australian Communications and Media Authority (the ACMA) dated 20, 23 and 25 August 2010 respectively.

From your letters I understand that on 2 June 2010, during the program Mornings broadcast on Melbourne ABC local radio (3LO), the presenter Jon Faine terminated a call from you and made comments about you on air. Your concerns arising from this incident include:

denial of an opportunity to you to express your viewpoint;
discrimination against certain political views;
attack upon your character and damage to the reputation of your business;
an 'untruth' about you which Mr Faine expressed on air;
unsatisfactory responses to your complaints from the ABC Local Content Manager Victoria; and
unsatisfactory treatment by 3LO production staff of telephone calls you made on 25 August, asking why you had been banned as a caller.

The ACMA is the Commonwealth body responsible for the regulation of broadcasting, the internet, radiocommunications and telecommunications. In relation to the ABC, however, the ACMA's jurisdiction is limited to matters covered by the ABC code of practice (copy enclosed).

The ABC is not required, under the code, to put any caller who requests it to air, or to explain the reasons for its decision not to do so. Further, defamation matters (such as damage to reputation) are not covered by the code. If you believe you and your business have been defamed, you may seek redress through the legal system.

In relation to the other matters you have raised: the code of practice contains requirements in relation to accuracy in factual content and impartiality in the case of news, current affairs, opinion, and topical and factual content. It also contains a requirement in relation to balance in the case of news and current affairs content.

If you consider that the ABC has breached the code in the broadcast on 3LO on 2 June 2010, you may make a complaint about the matter. Your complaint must be made to the ABC in the first instance. It should be directed to:

ABC Audience and Consumer Affairs

GPO Box 9994

MELBOURNE VIC 3000

Any complaint you make should clearly link your concerns to code requirements, ie it should make explicit reference to the code and focus on the issues that are covered by the code. In addition, if you consider, for example, that the broadcast breached the accuracy requirements because an 'untruth' was told about you, you should clearly identify the material broadcast that is of concern to you and indicate why you consider it inaccurate. The same would apply to any other code concerns you might have.

If you make a complaint in these terms to the ABC, and either do not receive a response within 60 days, or receive a response from the ABC but are dissatisfied, you may then refer the matter to the ACMA for consideration.

I enclose a brochure with further information about the ACMA's role in relation to complaints about the ABC.

I hope this information is of assistance.

10 Clause 7.1 to 7.6 of the ABC Code of Practice enclosed with the ACMA letter of 31 August 2010 dealt with complaints. Clause 7.1 provided:

This Code of Practice does not apply to any complaint concerning content which is or becomes the subject of legal proceedings or any complaint about a radio or television program which is made to the ABC more than six months after the broadcast to which it refers.

11 Clause 7.2 required relevant complaints to be in writing and directed to ABC Audience and Consumer Affairs. Clause 7.3 dealt with reviews by the ABC's Complaints Review Executive. Clause 7.4 dealt with referral to an independent complaints review panel. Further, this clause provided that if a complainant was dissatisfied with the outcome of this review, then complaint could be made to ACMA. Clause 7.5 also dealt with the circumstances in which complaint could then be made to ACMA. Clause 7.6 dealt with contact addresses.

12 In his affidavit in support of the current application, the plaintiff deposed to understanding clause 7.1 of the ABC's Code of Practice to mean that if he brought a proceeding against the ABC in the courts, ACMA would not deal with his complaint as a breach of the Code. The plaintiff went on:

I wanted to continue to pursue my complaint under the Code for three reasons:

Firstly, I wanted an opportunity to vindicate my reputation by correcting the inaccurate statements about me on air. 2. Secondly, I believed that there had been breaches of the Code, including inaccuracy, lack of impartiality and discrimination against me and my political views.

Thirdly, I did not know or anticipate at that time it would take a further ten months for my complaint to be resolved by the ABC and ACMA,[2] given that my first complaint was made on 2 July 2010. I expected it to be a cheaper, as well as a quicker, way to achieve vindication, than legal action through the Courts.
I did not want to commence legal proceedings because I wanted the ABC and, if necessary, ACMA to consider my complaint as a breach of the Code which, as a result of clause 7.1 of the Code, I believed was not possible if I brought a legal (or Court) action in defamation against the ABC.

13 In his affidavit in support, the plaintiff then deposes to further correspondence between himself and the defendant and himself and ACMA. This correspondence included two letters from ACMA to the plaintiff saying ACMA would not deal with matters about which complaint was made, either because the ABC had not yet responded to the plaintiff' complaint or, because the relevant matter had not yet been raised with the defendant.[3] In its letter of 18 October 2010, ACMA said:

Please be aware that the ACMA has not yet made any assessment of your complaint, nor will we do so until and unless you consider that the possibility of a first instance resolution (ie between you and the ABC directly) has been exhausted.

The ACMA cannot, at this stage anyway, investigate your complaint that the following statements were inaccurate:

"You have been banned"; and
"You are well aware [that you have been banned]".

The ACMA can only investigate complaints that have first been made to the ABC. As demonstrated above [in this letter], you have not made these complaints to the ABC.

...

Given the above, it is unclear whether you would wish the ACMA to conduct an investigation limited in scope to the matters outlined ... . Accordingly, your advice on the matter is sought, in the meantime, the ACMA will not be taking any further action in respect of your complaint.

15 There then followed further correspondence between the plaintiff and the defendant and the plaintiff and ACMA, until 19 May 2011 when ACMA wrote again to the plaintiff. In this letter (ACMA's letter of 19 May 2011), ACMA expressed a preliminary view that there were no breaches of the ABC's Code of Practice. The plaintiff was invited to comment on this "preliminary report" before a final decision was to be made.

16 There was then further correspondence in June 2011. On 6 July 2011, the plaintiff received the final report from ACMA. The summary of ACMA's decision (as disclosed in this report) was that there was no breach of the relevant clauses of the ABC's Code of Practice.

17 In his affidavit in support of the current application, the plaintiff then deposes that he had not brought proceedings by this stage (6 July 2011) as he "did not want to jeopardise the possible resolution of [the] matter by ACMA". The plaintiff's affidavit does not disclose any steps being taken by the plaintiff between 6 July 2011 and December 2011.

18 On 23 December 2011, the plaintiff then wrote to ACMA, stating his intention to have its decision reviewed by ACMA and by the Administrative Appeals Tribunal. On 7 May 2012, ACMA wrote back to the plaintiff, advising him that he had no formal right to have ACMA review its decision; and that there was no provision for an application to be made to the Administrative Appeals Tribunals. The letter went on:

The ACMA considers that there is no basis for altering its decision in this matter which is now finalised.

As advised in previous correspondence if you have concerns about the way in which the ACMA conducted this investigation you may wish to make a complaint to the office of the Commonwealth Ombudsman. More information about the role of the Ombudsman and how to make a complaint is on the Ombudsman's website at ... .

19 It would then appear, from the plaintiff's affidavit in support, that no further steps were taken by the plaintiff between 7 May 2012 and the commencement of this proceeding some ten months later on 27 March 2013. Certainly, the plaintiff's affidavit does not attempt to explain any delay during this period.

20 The Defamation Act 2005 (Vic) is part of uniform defamation legislation which came into force on 1 January 2006. By s 47(2) of the Defamation Act, s 5(1AAA) was inserted into the Limitation of Actions Act as follows:

An action for defamation must not be brought after the expiration of one year from the date of the publication of the matter complained of.

21 By s 48 of the Defamation Act, s 23B (in the terms to which I have already referred) was inserted into the Limitation of Actions Act.

22 The objects of the Defamation Act 2005 (Vic), and its cognate legislation, include:

(a) to enact provisions to promote uniform laws of defamation in Australia; and

(b) ...

(d) to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter.

23 The Queensland equivalent of s 23B of the Limitation of Actions Act 1958 (Vic) is s 32A of the Limitation of Actions Act 1974 (Qld). Section 32A of the Limitation of Actions Act 1974 (Qld) provides:

(1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action.

(2) A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 10AA to a period of up to 3 years from the date of the publication.

(3) A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2).

(4) An order for the extension of a limitation period, and an application for an order for the extension of a limitation period, may be made under this section even though the limitation period has already ended.

24 Section 32A of the Limitation of Actions Act 1974 (Qld) has been the subject of a number of Queensland Court of Appeal and Queensland Supreme Court Trial Division judgments.[4] The relevantly equivalent Western Australian and New South Wales provisions have also been considered in a number of cases in those states.[5]

25 In Noonan v MacLennan,[6] Keane JA[7] said:[8]

Section 32A(2) of the Act proceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence an action to vindicate his or her legal rights in accordance with the time limits provided by law. While s 32A(2) proceeds on this assumption, it is obvious that only in relatively unusual circumstances will a court be satisfied that it is not reasonable to seek to vindicate one's rights in accordance with the law. The burden is on a plaintiff to point to circumstances which make it not reasonable to seek to enforce his or her legal rights in the way required by the law.

26 In the same case, Chesterman JA said:[9]

The law ordinarily requires litigants to commence their proceedings within the appropriate limitation period for the reasons explained by McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541. It is only in special and specified circumstances that a limitation period may be extended. An applicant who wishes to sue for defamation beyond the limitation period must show that it was not reasonable to commence his action in time against the law's normative requirement that he sue in time. The test is therefore a difficult one for a plaintiff to satisfy.[10]

27 In Pingel v Toowoomba Newspapers Pty Ltd,[11] Fraser JA reiterated a point that has been made in many defamation authorities, namely that defamation claims should ordinarily be pursued very promptly.[12] In the same case (Pingel), Applegarth J analysed the judgments in Noonan v MacLennan[13] and identified seven propositions concerning s 32A of the Limitation of Actions Act 1974 (Qld). While Applegarth J was in dissent in Pingel v Toowoomba Newspapers,[14] these same seven propositions were referred to with approval by White JA[15] in Jamieson v Chiropractic Board of Australia.[16]

28 I respectfully agree with Applegarth J's analysis of Noonan v MacLennan and the propositions identified from that decision by his Honour in Pingel v Toowoomba Newspapers.[17] Modified so as to apply to s 23B of the Limitation of Actions Act 1958 (Vic), the relevant propositions are:

(a) First, under s 23B the burden is on the applicant for an extension of time to point to circumstances which make it not reasonable in the circumstances to have commenced a proceeding within one year from the date of the publication.

(b) Secondly, the circumstances that might give rise to an extension are left at large.

(c) Thirdly, the test posed by s 23B(2) is an objective one. It is not satisfied by showing that the applicant believed that he or she had good reason not to sue.

(d) Fourthly, if the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period, then it must extend the limitation period. Unlike other extension of time provisions, there is no discretion whether or not to extend time. However, a discretion exists as to the length of the extension to be granted which, in any event, may not exceed three years from the date of the defamatory publication.

(e) Fifthly, the section requires more of an applicant than to show that it would have been reasonable not to commence a proceeding until after the one year period had expired: the court must be satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period.

(f) Sixthly, the circumstances must be sufficiently compelling to satisfy the court that it was not reasonable in the circumstances to commence a proceeding within the one year period the law ordinarily requires litigants to commence proceedings.

(g) Seventhly, s 23B of the Act proceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence a proceeding to vindicate his or her legal rights in accordance with that time limit.

29 So far as the test posed by s 23B(2) being an objective one is concerned, I agree with Fullerton J in Lakaev v Denny[18] wherein her Honour noted that this did not mean the court should ignore the plaintiff's reasons for not commencing proceedings within the limitation period. Rather, the test of reasonableness under the section is objective in the sense that the circumstances to which the section refers are those that the court is satisfied are objectively established and not those that the plaintiff believed (however reasonably) to exist. Further, a plaintiff will not discharge the statutory onus merely by asserting a subjective belief that it was not reasonable to bring the proceeding in the 12 month period following publication, or merely by demonstrating that his or her election to pursue another remedy was a reasonable or viable option to commencing a proceeding.[19]

30 Similarly, in Houda v State of New South Wales,[20] McCallum J said:[21]

In considering the test under [the NSW equivalent of s 23B], it is appropriate to consider the plaintiff's actual reasons for not commencing proceedings within that time. However, the test also requires the court to consider whether, on an objective test, those reasons point to the conclusion that it was not reasonable to commence the action. It is not enough for an applicant to prove a subjective belief to that effect ... .

I consider, however, that those principles must be applied in the context that the statute plainly contemplates the existence of circumstances in which the court will be satisfied that it was "not reasonable" to commence proceedings within one year from the date of publication. Care must be taken in that context to distinguish between the reasonableness of commencing an action within that year and the reasonableness of allowing the limitation period to expire. The section focuses on the passage of time rather than on the reasonableness of ignoring the statute.

31 As has been said in the authorities to which I have referred, the test in s 23B(2) is not an easy one for a plaintiff to establish. Accepting all that the plaintiff has deposed to in his affidavit in support of this application, one could easily conclude that it was reasonable for the plaintiff not to commence this proceeding within the one year limitation period. However, as the authorities referred to above show, that is not the test. The question is whether the plaintiff has established that it was not reasonable in all the circumstances for him to have commenced the present proceeding within one year from the date of the broadcast on 2 July 2010.

32 As the authorities show, there may be circumstances where settlement negotiations between the parties make it not reasonable to commence a defamation proceeding within the one year time limit. However, as is equally plain, merely because there are settlement negotiations between the parties does not necessarily lead to the conclusion that it will not be reasonable to commence a proceeding during the one year limitation period.

33 The present case is different from the cases involving settlement negotiations between the parties. It is trite to say that, while settlement is an alternative to litigation, in the event that settlement negotiations are unsuccessful, litigation almost always follows. In such circumstances it might be not reasonable to commence a proceeding if settlement could obviate the need for the commencement of the proceeding.

34 However, the ACMA complaint route taken by the plaintiff in the present case is not an alternative to litigation of the same kind that settlement negotiations might be. The ACMA complaint route taken by the plaintiff was, on the plaintiff's material, a true alternative to litigation in the sense that one either took that route or one could issue defamation proceedings. That is, what the plaintiff was offered under the ABC's Code of Conduct and by ACMA was a method for resolving disputes not involving defamation proceedings. Clause 7.1 of the ABC's Code of Practice provided that the Code of Practice did not apply to any complaint "which is or becomes the subject of legal proceedings". ACMA's letter of 31 August 2010 made it clear to the plaintiff that its jurisdiction was "limited to matters covered by the ABC Code of Practice" and that "defamation matters (such as damage to reputation) [were] not covered by the Code".

35 Notwithstanding these matters, the plaintiff chose to pursue the ACMA complaint route as if defamation proceedings would not be taken against the defendant. Certainly the plaintiff did not swear to pursuing the ACMA complaint route in the belief (or with the intention) that if that did not produce a result he was entirely satisfied with, then he proposed to commence defamation proceedings.

36 Even if one could liken the ACMA complaint route to an alternative to litigation in the same way that the pursuit of settlement negotiations might be, there is nothing in the material in this case that suggests that the plaintiff would not have commenced the current defamation proceeding in the event he did not receive everything he wanted in relation to the resolution of the dispute by a determination, or publication of a report, by ACMA. The ACMA complaint route was never likely to produce an award of damages or an award of aggravated damages as claimed in the present proceeding.[22] These were always remedies that required the bringing of court proceedings.

37 In the circumstances, while I might be satisfied that it was reasonable for the plaintiff to take the course he took, I am not satisfied that it was not reasonable for the plaintiff to commence the present proceeding within one year from the date of the broadcast. Accordingly, the plaintiff's application for an extension of time must be refused.

38 For the sake of completeness I should say that even if I had been satisfied that it was not reasonable for the plaintiff to have commenced this proceeding within one year from the date of the broadcast, as a matter of discretion, I would not have extended the time limit to 27 March 2013. As I have said above, defamation proceedings must be taken in a timely fashion and without undue delay. There is no real excuse offered by the plaintiff for the delay between 6 July 2011 (when ACMA's final report was published) and 27 March 2013. All that the plaintiff appears to have done during that time is to foreshadow an intention to make review applications which he was advised were not open to him.[23]

39 There can be no doubt that once a plaintiff establishes that it was not reasonable to commence a defamation proceeding within one year from the date of publication, the court must extend the limitation period to a period of up to three years from the date of publication. Counsel for the plaintiff submitted that, in the present case where a proceeding has been issued (on 27 March 2013), if the court is satisfied that it was not reasonable to have commenced the proceeding within one year, then the court was bound to extend the period until the date the proceeding was actually commenced.

40 I reject this submission. The submission is contrary to the authorities to which I have previously referred.[24] Further, acceptance of the plaintiff's submission would mean that once a plaintiff established that it was not reasonable to commence a defamation proceeding within the one year limitation period, a further limitation period of an additional two years would be granted irrespective of the reasonableness or otherwise of not taking a proceeding during any part of that period.

41 If, contrary to the finding set out above, the plaintiff had established that it was not reasonable to commence his proceeding within the one year limitation period, in my view, a proper exercise of discretion would have been to extend the limitation period for twelve months from 6 July 2011. However, as I have said above, the plaintiff has failed to establish that it was not reasonable to commence his proceeding within the one year limitation period.

42 The plaintiff's application for an extension of time will be dismissed.

[1] In paragraph one of the plaintiff's statement of claim.

[2] But cf the plaintiff's second letter written on 24 January 2011 to ACMA in which he stated that he understood that the investigation "could take a lengthy period".

[3] See ACMA's letters of 18 October and 19 November 2010.

[4] See Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; Jamieson v Chiropractic Board of Australia [2011] QCA 56; Mowen v Morning Bulletin APN & Ors [2012] QSC 194.

[5] See Rayney v The State of Western Australia (No 3) [2010] WASC 83; Wookey v Quigley (No 2) (2010) WASC 209; Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676; Lakaev v Denny [2010] NSWSC 1480; Barach v University of New South Wales [2011] NSWSC 1327; Ritson v Gay & Lesbian Community Publishing [2012] NSWSC 483; Carey v Australian Broadcasting Corporation [2012] NSWCA 176; (2012) 290 ALR 348; and Houda v State of New South Wales [2012] NSWSC 1036. See further, Rametta v Deakin University [2010] FCA 1341.

[8] Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537, 541 [15].

[10] But cf the criticism of the next paragraph of Chesterman JA's judgment (wherein Chesterman JA talks of circumstances having to be "so compelling as to make it positively unreasonable for a person defamed not to exercise his legal rights to sue within the statutorily designated period") in Jamieson v Chiropractic Board of Australia [2011] QCA 56 [20] and Houda v State of New South Wales [2012] NSWSC 1036 [14].

[15] With whom Muir JA and Philippides J agreed.

[19] See further, Carey v Australian Broadcasting Corporation [2012] NSWCA 176; (2012) 290 ALR 348 [56]-[57].

[23] See the plaintiff's letter to ACMA dated 23 December 2011.

[24] See Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537, 547 [47]; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 [87] (Proposition 4); and Jamieson v Chiropractic Board of Australia [2011] QCA 56 [22].

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