Rodgers v Nine Network Australia Pty Ltd

District Court of NSW|2008-10-17|Before: Hunt J, Levine J

The application pursuant to the Civil Procedure Act

The plaintiffs, in the alternative, brought applications pursuant to ss 14, 64 and 65 Civil Procedure Act. In the event that I have erred in relation to my findings concerning the Limitation Act application, I shall set out my findings on this issue. I would have to assume, for the purposes of ss 64 and 65, not only that the relevant limitation period had expired, but also that no application had been brought for an extension of time and refused. This gives my findings on this issue a high degree of artificiality, and they are accordingly fairly brief.

Section 64 provides: " 64 Amendment of documents generally

(1) At any stage of proceedings, the court may order:

(a) that any document in the proceedings be amended, or

(b) that leave be granted to a party to amend any document in the proceedings.

(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.

(4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party.

(5) This section does not apply to the amendment of a judgment, order or certificate." 59. Section 65 provides: " 65 Amendment of originating process after expiry of limitation period

(1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings.

(2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as:

(a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or

(b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court's opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or

(c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process.

(3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced.

(4) This section does not limit the powers of the court under section 64.

(5) This section has effect despite anything to the contrary in the Limitation Act 1969 .

(6) In this section, "originating process", in relation to any proceedings, includes any pleading subsequently filed in the proceedings." 60. The defendants submit that unless there is a mistake in the name of a party, these sections do not permit the circumvention of the limitation legislation. In Greenwood v Papademetri Campbell JA explained the effect of joinder of a party on the operation of limitation periods and explained in some detail how s 65(2)(b) Civil Procedure Act is applied. Rather than attempt to restate what his Honour has so clearly and carefully said, I will set out the relevant extracts of his judgment.

First of all, Campbell JA noted that r 6.28 of the Uniform Civil Procedure Rules had the effect that if a party is joined under r 6.24, that joinder cannot be treated as having been effective on any date earlier than the date the order for joinder is made. If the limitation period has expired, the futility of that party's being joined cannot provide a reason why the order for joinder should not be made at all. If a trial is needed, any order joining the party does not prejudice the availability of the limitation defence that the party joined might have. Campbell JA goes on to note (at [27]) how s 65 operates in this context: "If, however, a party can be joined under section 65 Civil Procedure Act 2005 , section 65(3) has the effect, unless the court otherwise orders, that the amendment is taken to have had effect from the date on which the proceedings were commenced. Thus, if a person who was not previously a party can be made a party pursuant to section 65, and the proceedings themselves were commenced before the expiry of any limitation period applicable to that person, any limitation defence that that person would have had, if new proceedings had been commenced against him or her on the date the order was made, becomes unavailable. In this way, section 65 has the practical effect of an amendment to the Limitation Act 1969 . Section 65(5) makes explicit that section 65 is intended to have such an effect."
Campbell JA notes (at [28]) that s 64 provides a discretionary basis upon which amendments can be made to a statement of claim in cases not covered by s 65 or the amendment relates back to the date of instituting the proceedings because the mistake is a fundamental one, namely a mistake in the name of a party. Campbell JA goes on to explain however (at [29]): "It is clear from the terms of section 65(4) itself that section 65 does not result in any limitation by implication of the general power conferred by section 64: Greater Lithgow City Council v Wolfenden at [12]. But that does not necessarily mean that the power of amendment under section 64 is totally unrestricted. It is still possible that a limitation on the power under section 64 could arise by implication from a provision other than section 65. In Fernance v Nominal Defendant , Gleeson CJ (with whom Clarke JA agreed) recognized that the power of amendment contained in the former Part 20 rule 1 Supreme Court Rules 1970 (the analogue of the present section 64) provided a basis for amendment to a statement of claim that was independent of Part 20 rule 4 (the analogue of the present section 65). Even so, Gleeson CJ held that Part 20 rule 1 did not stretch sufficiently wide to permit an amendment to the parties to proceedings on any basis other than that provided by the specific rule that dealt with the time as at which an amendment to the parties to proceedings would take effect (the analogue, in broad terms, of the present rule 6.28). Were it otherwise, there would have been repugnancy between the two different rules."
Campbell JA assumed that the same result would be arrived at in Fernance after the Civil Procedure Act and Uniform Civil Procedure Rules as was the case before. This means it was necessary to consider whether the amendment sought in Greenwood fell within s 65(2)(b), quite independent of s 64. The same is the case in these proceedings.

Campbell JA then explained (at [33]-[36]) how s 65(2)(b) Civil Procedure Act should be read: "The power that is conferred by section 65(2)(b) is purposive in its nature. It authorises the court to grant leave to a plaintiff to amend the originating process in whatever way is needed to correct a mistake in the name of a party to the proceedings. The words "whether or not the effect of the amendment is to substitute a new party" do not limit the width of that power. Rather, they make clear that the power can apply in some circumstances where the effect of the amendment is to substitute a new party, and can also apply in some circumstances where the effect of the amendment is not to substitute a new party. The precise order that is appropriate under section 65(2)(b) will depend upon what, in the circumstances of the particular case, is the particular mistake that there has been in the name of a party to the proceedings, and what needs to be done to correct that mistake. Section 65(2)(b) does not confer on the court power to correct any and every mistake that has been made in the name of a party to the proceedings. It applies only to a mistake that, in the court's opinion, is neither misleading, nor such as to cause reasonable doubt as to the identity of the person intended to be made a party. In some cases where an amendment is sought under section 65(2)(b) there may be considerable argument about whether a mistake in the name of a party has those characteristics. However, no such argument was put to us on the present appeal. Even if a proposed amendment is one whose effect could be described by the language in para (b) of section 65(2), there is still a discretion in the court whether to permit that amendment. Section 65(2) contemplates that any amendment made under section 65(2) will be effected through leave granted under section 64(1)(b). Thus, the discretion of the court concerning whether to grant leave to amend under section 65(2) needs to be exercised in accordance with section 64(2). Section 64(2) itself requires the court to exercise its discretion in accordance with section 58, which in turn requires the court to have regard to the provisions of sections 56 and 57. Even if it were not inherent in the grant of a discretion to a judicial officer, section 58(2)(b) enables the court to have regard, in an application for an order under section 65(2)(b), to matters such as the knowledge that the person proposed to be added as a party had of the proceedings during the limitation period, and the nature and degree of any prejudice that the person sought to be added would suffer if the order were made.

No evidence or submission was put to the Judicial Registrar concerning a discretionary reason why she should not make the joinder order, nor is any such discretionary question raised before us. Rather, the entire argument before us has concerned whether power existed to make the joinder order." 65. Greenwood is a difficult decision to follow because Campbell JA and Young CJ in Eq take differing points of view. At [77] and [78], Campbell JA disagrees with Young CJ in Eq's reading of s 65(2)(b) in Sibroll Pty Ltd v Mitch Properties Pty Ltd [2007] NSWSC 579. As Young CJ in Eq notes at [97]ff, he disagrees with Campbell JA's reasoning in Greenwood. Both judges considered, as Young CJ in Eq notes at [108], that "in the situation where the plaintiff mistakenly thought that A was the proper defendant, whereas it was the jointure of A, B and C, it must be considered a case of substitution not a case of adding a fresh party". Thus in the Greenwood case, if the plaintiff mistakenly thought that Jamiel Antoun was the owner and occupier as well as the builder, and sought that the case proceed against Jamiel Antoun as the builder and Lyne Antoun's estate as the owner/occupier, Young CJ in Eq would agree on the way that the motion was argued below, that the appropriate amendment should have been made. Young CJ in Eq noted at [118] "should the plaintiff now seek to amend further by deleting the claim that Jamiel was the owner/occupier, I would allow the action to continue against both defendants."

In Street and 7 Ors v Luna Park Sydney Pty Ltd and 1 Or [2006] NSWSC 230, Brereton J explained that there is a clear distinction between a case in which a defendant is added and a case in which an additional cause of action is raised against an additional defendant as follows: "It is in the second category that controversy has emerged. Some cases have suggested that the relation-back doctrine does not apply to an amendment which adds a new cause of action, so as retrospectively to deprive a defendant of a limitation defence in respect of the new cause of action [ Liff v Peasley ; Morgan v Banning ; Agtrack v Hatfield (VCA)]. And in Agtrack v Hatfield, Ormiston JA suggested that relation back was not a principle of law at all, but a matter or convenient practice applicable only for some purposes"
Accepting and applying the analysis of these sections as set out above, I accept the defendants' contention that s 64 is limited to a question of a mistake in the name of a party. Where a plaintiff has commenced proceedings against a defendant in error, and seeks to commence against the correct defendant there is a limited right of exception to the general principles relating to limitations on actions. However, this exception is very narrow in scope and cannot apply to the factual situation here.

Nor is s 65 of assistance to a plaintiff where it requires the addition of new parties. While s 65 would permit the substitution of a new cause of action arising from the same or substantially the same facts as those giving rise to an existing cause of action, and deprives the party against whom litigation has been commenced of a defence under the Limitation Act, this does not permit the joinder of additional defendants in circumstances where the action against those additional defendants is otherwise contrary to the provisions of the Limitation Act. Accordingly s 65 could not assist the plaintiffs if the relevant limitation period had expired.

The application pursuant to s 14 Civil Procedure Act

The plaintiffs alternative rely upon a potential interpretation of s 14 Civil Procedure Act (in obiter by Santow J) in Karam v ANZ Banking Group Limited [2000] NSWSC 596 at [16]ff. Although Karam predates the enactment of the Civil Procedure Act, Santow J considered that the overriding purpose set out in the Supreme Court Rules 1970 (NSW) to facilitate the just, quick and cheap disposal of the real issues in proceedings meant that there must be times when the courts would put aside principles of law (NSW Bar Association v Muirhead (1988) 14 NSWLR 173 at 215-6 per Mahoney JA). Santow J noted that in Karam, as was the case here, the proposed additional party (the ANZ Bank) was no stranger to litigation, and the pleadings and factual contentions were essentially the same. This was a different situation to Fernance, where there were no allegations in the pleading relating to the party to be added to as a defendant, who was a complete stranger to the litigation.

At [21], Santow J said he was "troubled" by this question but in the end decided to deal with this matter on other bases, noting the inevitable tension between the justice of permitting a party to add a further plaintiff and the expectation that the defendant has in conducting the litigation that no such addition would be permitted after the limitation period has expired (at [21]). Santow J went on to note that Fernance had been distinguished by the Court of Appeal in Australian Coastal Shipping Commission v Curtis Cruising Pty Limited, although the Limitation Act considerations differed.

Section 14 Civil Procedure Act provides as follows: " 14 Court may dispense with rules in particular cases

In relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case." 72. This section was intended to operate in circumstances of legislative oversight or unforeseen gaps in the rules. The intention was to ensure that technicalities of procedure did not triumph over the substance of issues in the case. It was not however designed to modify or replace the provisions in the Limitation Act or Civil Procedure Act where clear provisions had been enacted. Accordingly, I am of the view that s 14 cannot assist the plaintiffs in this case.

In applications for extension of time, the party seeking the indulgence generally must pay the costs. I see no reason why such an order should not be made in the present circumstances.

Pursuant to s 56A Limitation Act 1969 I extend the limitation period to the date of the proposed joinder of Simon Bouda and Tracey Grimshaw to the date given in order 2 below for the filing of an Amended Statement of Claim in these proceedings.
The plaintiffs are, within fourteen (14) days, to file an Amended Statement of Claim joining Simon Bouda and Tracey Grimshaw as defendants to proceedings for defamation, injurious falsehood and pursuant to the Trade Practices Act 1975 (Cth), as well as to plead the additional imputation as specified by the plaintiffs in written submissions.
Notice of Motion filed on 10 September 2008 (as amended) otherwise dismissed.
Plaintiffs pay defendants' costs of the application.
Matter stood over for further directions to Friday 19 December 2008 at 9:00am.

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.

Trade Practices Act 1975(Cth)

Defamation Act 1974(NSW)

Trade Practices Act 1974(Cth)

CITATION: Rodgers v Nine Network Australia Pty Ltd (No 2) [2008] NSWDC 275

Agtrack (NT) Pty Ltd v Hatfield [2003] VSCA 0006 Australian Coastal Shipping Commission v Curtis Cruising Pty Limited (1989) 17 NSWLR 734 Boland v Dillon; Cush v Dillon [2007] NSWDC 8 Brazel v John Fairfax & Sons Ltd (Hunt J, 17 February 1989, unreported) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Buck & Ors v Jones & Ors [2002] NSWCA 8 Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 Church of Scientology of California Inc v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344 Coates v Harbour Radio Pty Ltd & Anor [2008] NSWSC 292 Davis v Nationwide News Pty Ltd [2008] NSWSC 699 Dehsabzi & Dehsabzi v John Fairfax Publications Pty Ltd [2007] NSWDC 247 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Dubourcq v Brouwer 124 N.Y.S.2d 61 (1953), AFF'D, 282 App. Div. 861 Fernance v Nominal Defendant (1989) 17 NSWLR 710 Ferrier v Jones & Anor [2003] NSWSC 39 Ford v Nagle & Ors [2004] NSWCA 33 Gersbach v Radio 2UE Sydney Pty Ltd (Supreme Court of NSW, Levine J, 29 August 1997, unreported) Gorton v ABC & Walsh (1973) 1 ACTR 6 Greater Lithgow City Council v Wolfenden [2007] NSWCA 180 Greenwood v Papademetri [2007] NSWCA 221 Gulf Atlantic Life Insurance Company v Hurlbut 696 S.W.2d 83 CASES CITED: Gulf Atlantic Life Insurance Company v Hurlbut 749 S.W.2d. 762 (Tex. 1987) Hall & Ors v Jones & Anor [2000] NSWSC 39 Harrigan v Jones [2000] NSWSC 119 Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 Karam v ANZ Banking Group Limited [2000] NSWSC 596 Le Busque v ACP Publishing Pty Ltd (2005) 195 FLR 198; [2005] ACTSC 138 Liff v Peasley [1980] 1 All ER 623 Mackay v Jones & Anor (Supreme Court of NSW, Levine J, 12 May 1995, unreported) Morgan v Banning (1999) 20 WAR 474 Murrihy v Radio 2UE Sydney Pty Ltd (Supreme Court of NSW, Levine J, 11 December 1998, unreported) National Mutual Life Association of Australasia Ltd v GTV Corp Pty Ltd [1989] VR 747 NSW Aboriginal Land Council & Ors v Jones & Ors (Supreme Court of NSW, Levine J, 15 August 1997, unreported) O'Neill v Jones & Anor [1999] NSWSC 270 Peluso v TCN Channel Nine Pty Limited [2000] NSWSC 213 Rodgers v Nine Network Australia Pty Ltd [2007] NSWDC 180 Scott v Jones & Anor [2002] NSWSC 210 Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLR 390 Sibroll Pty Ltd v Mitch Properties Pty Ltd [2007] NSWSC 579 Stokes v Radio 2UE Sydney Pty Ltd (Supreme Court of NSW, Levine J, 31 October 1995, unreported) Street and 7 Ors v Luna Park Sydney Pty Ltd and 1 Or [2006] NSWSC 230 Waites v Macquarie Radio Network Ltd [2006] NSWSC 507 Wallace v Jones & Anor [2001] NSWSC 1085 Westerway v Jones and Radio 2UE Sydney Pty Ltd (Supreme Court of NSW, Levine J, 20 August 1993, unreported)

This application raises a number of problems which may be relevant to other defamation proceedings (either contemplated or currently on foot) concerning the interaction between the Limitation Act 1969 (NSW) and the Civil Procedure Act 2005 (NSW) and the impact of an apparent significant change in the statutory defence of comment which was discussed (but not the subject of any judgment) by McClellan CJ at CL in the course of the defamation proceedings brought by the actress Judy Davis in May 2008 (Davis v Nationwide News Pty Ltd [2008] NSWSC 699). In the course of submissions, McClellan CJ at CL expressed the view that it was necessary for the journalists to be joined as parties (a step rarely taken in the past by plaintiffs, for reasons set out in more detail below) for the plaintiffs to be able to succeed in defeating the defence of comment.

The plaintiffs commenced proceedings for defamation concerning three promotional broadcasts for A Current Affair and for the program itself in a matter of weeks after the broadcast, and the usual interlocutory steps then took place, including a challenge to the imputations (Rodgers v Nine Network Australia Pty Ltd [2007] NSWDC 180). The defendants were ordered to file a defence within the limitation period but did not do so. After the limitation period expired, the defendants filed a defence pleading statutory honest opinion and common law fair comment defences ("the comment defences") and on 14 March 2008 identified "Mr Bouda and/or Ms Grimshaw" as the employees or agents of the first defendant who held the relevant opinions. (This is of some significance in the limitation argument as the plaintiffs did not know until after the limitation period expired who held the opinions. If McClellan CJ at CL's view of the statutory defence is correct this may require, as his Honour pointed out in argument, applications for discovery before suit to identify the opinion holders before the expiry of the limitation period.)

That is not to say that journalists were never sued. They were occasionally joined as additional defendants. This seems to have occurred quite often where the journalist in question was Alan Jones. Actions brought over his broadcasts often name him as the first defendant (e.g. Ferrier v Jones & Anor [2003] NSWSC 39; Scott v Jones & Anor [2002] NSWSC 210; Buck & Ors v Jones & Ors [2002] NSWCA 8; Wallace v Jones & Anor [2001] NSWSC 1085; Harrigan v Jones [2000] NSWSC 119; Hall & Ors v Jones & Anor [2000] NSWSC 39; O'Neill v Jones & Anor [1999] NSWSC 270; NSW Aboriginal Land Council & Ors v Jones & Ors (Supreme Court of NSW, Levine J, 15 August 1997, unreported); Mackay v Jones & Anor (Supreme Court of NSW, Levine J, 12 May 1995, unreported); Westerway v Jones and Radio 2UE Sydney Pty Ltd (Supreme Court of NSW, Levine J, 20 August 1993, unreported)). Sometimes he is the second or third defendant: Coates v Harbour Radio Pty Ltd & Anor [2008] NSWSC 292; Peluso v TCN Channel Nine Pty Limited [2000] NSWSC 213. While this is not a universal rule, cases where Mr Jones was not sued are rarer (Gersbach v Radio 2UE Sydney Pty Ltd (Supreme Court of NSW, Levine J, 29 August 1997, unreported); Waites v Macquarie Radio Network Ltd [2006] NSWSC 507; Stokes v Radio 2UE Sydney Pty Ltd (Supreme Court of NSW, Levine J, 31 October 1995, unreported); Murrihy v Radio 2UE Sydney Pty Ltd (Supreme Court of NSW, Levine J, 11 December 1998, unreported)). Notwithstanding this curious (and unexplained) anomaly, in the vast majority of cases, journalists have not been parties to the action.

Courts had traditionally been reluctant to strike out defences of qualified privilege on an interlocutory basis as issues such as malice are not appropriate for determination in a summary fashion: Church of Scientology of California Inc v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344 at 349 per Hunt J; Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 157-8; Aust Torts Reports 80-187 per Hunt J; National Mutual Life Association of Australasia Ltd v GTV Corp Pty Ltd [1989] VR 747 at 767.

Further, both the Court of Appeal and the Supreme Court of New South Wales have repeatedly warned about the dangers of summary striking out even poorly particularised defences in actions such as defamation or abuse of process which appear to be hopeless. In Ford v Nagle & Ors [2004] NSWCA 33 Mason P stressed that a plaintiff may remedy evidential deficiencies by reason that defendants may go into evidence at the hearing (at [22] and [26]).

In 2003 the Defamation Act 1974 (NSW) was amended to reduce the limitation period from six years to one year. Since that time there had been a number of applications to commence proceedings out of time. As a general rule, these applications have been successful where a reasonable explanation is put forward, the delay is not substantial and there is no assertion of actual prejudice: see for example Dehsabzi & Dehsabzi v John Fairfax Publications Pty Ltd [2007] NSWDC 247 (application refused); Boland v Dillon; Cush v Dillon [2007] NSWDC 8 (application granted).

The defendants firstly submit that the new Defamation Act, contrary to the statements of the Attorney General, is not the same as or similar to its predecessor, but much stricter in its requirements. The defendants draw my attention to Le Busque v ACP Publishing Pty Ltd (2005) 195 FLR 198; [2005] ACTSC 138. The plaintiff in those proceedings was refused leave by Master Harper because the plaintiff's affidavit made it clear he first became aware of the article well within the initial limitation period.

(c) there is no issue of delay ( Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [29]-[32]) so as to justify a refusal to permit the amendment and joinder; and,

The second is the point made by the Court of Appeal in Greenwood v Papademetri [2007] NSWCA 221 where Young CJ in Eq noted at [120] that: "In the light of ss 56, 58 and 59 of the Civil Procedure Act , judges must not now delight in technicalities but must strive to produce just and fair results."
Greenwood v Papademetri was a case on correcting a mistake to the name of a party in proceedings, but it is a timely reminder of the need for litigation to be "just, cheap and quick" and of the impact of the Civil Procedure Act in limitation proceedings and the need for "just and fair results".

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Cases Cited (33)