Spedding v Dailymail.com Australia Pty Ltd

The plaintiff's application

1. The action is out of time. The limitation period for defamation is one year. At the time the statement of claim was filed, Mr Spedding's causes of action for the two articles from 2016 were over six months out of time. The statement of claim also included a claim on a cause of action arising from an article dating back to April 2015 which was almost two years out of time. Mr Spedding has accordingly applied for an extension of the time within which to bring the proceedings. This judgment determines that application.
2. The order sought in the notice of motion filed 1 May 2018 is "that the time to bring this action be extended to 22 March 2018" (the date on which the statement of claim was filed). However, as already noted, the statement of claim sues on a number of separate publications, each of which gives rise to a separate cause of action. The relief sought should more appropriately have been framed by reference to each individual cause of action.

Determination of the plaintiff's application

1. I have determined that, in respect of the articles published in 2016, the extension of time must be granted. As to the article published in April 2015, I am not persuaded that there should be an extension of time. My reasons for reaching those conclusions are as follows.

Principles to be applied

1. Section 56A of the Limitation Act 1969 (NSW) provides: "56A Extension of Limitation Period by Court (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 14B to a period of up to 3 years running 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)."
2. The section raises two questions. In Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304 at [8], the Court of Appeal described the first question (whether it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the date of the publication) as the "not reasonable test" and the second question (as to the length of any extension of the limitation period) as the "discretionary test". It is convenient to adopt the same terminology.
3. The principal contest in the present case concerned the "not reasonable test". The defendant did not contend that, if that test was satisfied, the outcome of the discretionary test would be to grant an extension for a period shorter than that required in order to bring the action within time.
4. As submitted on behalf of the defendant, the "not reasonable test" is an objective test; it is not judged by reference to the plaintiff's own subjective assessment as to when it would be reasonable (or not) to commence proceedings. However, the Court must of course consider the plaintiff's actual reasons for not doing so. Mr Spedding relied in this context on my decision in Houda v State of New South Wales [2012] NSWSC 1036 where I considered the proper approach to that question at [11] to [14], as follows: "11. In considering the test under s 54A, 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: see my judgment in Carey at [46] to [48]; approved by the Court of Appeal in Carey at [56] to [57]. 12. 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. 13. That is not to say that the existence of the limitation period is an irrelevant circumstance in the consideration of that question. However, the court must be astute not to approach the issue on the premise that it is always "not reasonable" to let a limitation period pass without commencing an action. The section expressly contemplates otherwise. 14. Further, in my view, the plaintiff does not have to establish that the commencement of proceedings would have been positively unreasonable: only that it was not reasonable. I acknowledge that my conclusion in that respect is inconsistent with the view stated by Chesterman JA in Noonan v MacLennan [2010] QCA 50; 2 Qd R 537 at [51]. With great respect to his Honour, the formulation there endorsed puts a gloss on the words of the section. It must be accepted however that, absent some particular consideration militating against the commencement of proceedings, it would ordinarily be reasonable to commence proceedings during the prescribed period."
5. The application in Houda had some similarity to the present case in that the plaintiff's reason for not commencing defamation proceedings within the limitation period was that he had been charged with criminal offences which raised the same allegation as the defamatory imputations of which he complained. I was satisfied that it was not reasonable for Mr Houda to commence proceedings for defamation before the conclusion of the criminal proceedings against him; at [34].

Mr Spedding's reasons for not commencing proceedings within the limitation period

1. The statement of claim filed 22 March 2018 pleads four causes of action. The first is an article published online in The Daily Mail on 24 August 2016. That article referred to Mr Spedding as a convicted paedophile. Mr Spedding alleges that the article carried the following defamatory imputations: 1. that he is a paedophile; 2. that he has been convicted of predatory sexual conduct in relation to a child.
2. The form of the second imputation may require attention. It would make more sense to speak of being convicted of an offence rather than being convicted of conduct.
3. The second matter complained of is an article placed online in The Daily Mail on 3 September 2016. That article repeated the reference to Mr Spedding as a convicted paedophile. The same two imputations are pleaded.
4. The third matter complained of is a link to the second matter complained of on the defendant's Facebook page. The same two imputations are pleaded.
5. The fourth matter complained of is the article published earlier, on 27 April 2015. That article did not refer to Mr Spedding as a convicted paedophile but reported a number of allegations concerning him including that he was a person of interest in the William Tyrrell case and that he had been charged with five historical counts of child sex abuse. In respect of that article, the imputations specified by the plaintiff are: 1. that he is a paedophile; 2. that he was a member of a paedophile ring; 3. that he raped two young girls in 1987.
6. Mr Spedding swore an affidavit in support of the application on which he was not cross-examined. He said that, in March 2015, he became aware that the media were portraying him standing next to his van which then had the word "peddo's" (that is, Speddo's with the "S" missing). He felt the media were attempting to insinuate that he was a paedophile and became extremely distressed and upset. He said he spoke to lawyers at that time (Priest Legal) and that the lawyers began collecting the publications.
7. On 22 April 2015, Mr Spedding was arrested and charged in relation to the historical child sexual abuse allegations in New South Wales. He said once those charges were laid he was given "certain advice by Priest Legal with regards to any defamation action". He said his criminal defence lawyers, O'Brien Solicitors, repeated this advice. The content of the advice was not disclosed in the affidavit. Mr Spedding said that, on the basis of that advice, he chose not to pursue a claim for defamation until after the criminal matters were resolved.
8. On 27 April 2015, The Daily Mail published the article sued on as the fourth matter complained of in these proceedings. Mr Spedding's affidavit did not specifically address that article but it appears it fell within the period addressed by the advice referred to above.
9. On 26 July 2016, Mr Spedding received the summons in relation to the Victorian allegations of historical child sexual abuse.
10. In early September 2016, Mr Spedding became aware of the first, second and third matters complained of. He was particularly distressed by the fact that the articles referred to him as a "convicted paedophile". He spoke to his lawyers, Priest Legal, again. On this occasion, further advice was sought from counsel. Again, the affidavit said only that Mr Spedding was given "certain advice" which was repeated by his criminal defence lawyers. On the strength of that advice, Mr Spedding again chose not to pursue a claim for defamation until after the criminal matters had resolved.
11. The application for an extension of time came before me for hearing on 23 November 2018 (the motion was filed on 1 May 2018 but the plaintiff sought to have the hearing deferred a number of times owing to the existence of non-publication orders in the criminal proceedings). On that occasion, it was submitted by Ms Goodchild on behalf of Mr Spedding that it was not reasonable to commence proceedings so long as the criminal proceedings were on foot because the publisher might in due course have had a complete defence (if Mr Spedding was convicted of the historical allegations). It was submitted on that basis that, until those proceedings were finalised, no solicitor would have been in a position to certify that the proceedings had reasonable prospects of success.
12. In response to those submissions, the defendant noted that there was no evidence before the Court as to the content of the advice Mr Spedding had received. After I reserved my decision, the parties asked me to defer giving judgment (originally scheduled for 27 November 2018) because both parties wished to put on additional evidence.
13. On 12 December 2018, the proceedings were relisted and the parties were given leave to put on further evidence. Further submissions were also made.
14. The further evidence for the plaintiff was an affidavit from his solicitor, Mr O'Connell from O'Brien Solicitors. The affidavit records that Mr Spedding has waived privilege in relation to the legal advice he has received. Mr O'Connell said: "The plaintiff was never given advice in relation to defamation proceedings by our firm and we were not approached to give such advice until after the criminal matters had concluded and he decided he wanted us to continue on in a civil capacity. The plaintiff was advised in a general sense by his criminal solicitor that it was best to avoid any other proceedings that may prejudice his criminal proceedings until those criminal proceedings were concluded."
15. The affidavit annexes email correspondence between Mr Spedding and his previous solicitor, Mr Brigden of Priest Legal.
16. The email correspondence is silent as to any advice given concerning the 2015 article. Accordingly, the highest the matter can be put in respect of that article is that the plaintiff was advised "in a general sense" to avoid any other proceedings that may prejudice his criminal proceedings until those criminal proceedings were concluded.
17. The correspondence begins on 8 September 2016 with an email from Mr Brigden to Mr Spedding thanking him for some information (not disclosed in the affidavit) and notifying him that a conference had been arranged with two barristers, senior counsel and junior counsel. The email stated that Mr Spedding was not required to attend the conference. The two barristers were named in the email. Both are experienced, highly-regarded defamation practitioners and Mr Brigden said as much to Mr Spedding. The email indicated that counsel had been informed any brief would be on a "no win no fee basis".
18. On 9 September 2016, Mr Brigden wrote to the two barristers thanking them for their time and advice. The email said: "Bill accepts and also appreciates the advice, which I will confirm to him in writing next week. He will not take action (aside from my email below) unless all of the criminal matters conclude within the 12 month limitation period. I'll keep a close eye on the proceedings and the limitation period."
19. The reference to the "email below" was a reference to a complaint sent by Mr Brigden to the publisher of The Daily Mail pointing out the error in the articles (that Mr Spedding was not a convicted paedophile) and seeking correction.
20. On 12 September 2016 Mr Brigden wrote to Mr Spedding confirming counsel's preliminary advice that: "Whilst you have a reasonably strong case to recover damages from the Daily Mail for defamation, the risk to you (in terms of further reputational damage, and exacerbation of jury [sic] and other bias is in your criminal proceedings) in doing so is simply too great. I fully endorse the advice. The potential risk to your freedom (even if slight), given the serious nature of the charges, does not justify pursuing civil damages even though, ironically in this instance, you have strong prospects of success."
21. The email concluded by noting that the limitation period would expire on 23 August 2017.
22. Finally, on 21 July 2017, Mr Brigden wrote to Mr Spedding again (presumably in response to some further contact from him), as follows: "As previously advised no defamation claim should be made pending conclusion of your criminal proceedings, as advised by learned Counsel. On the strong advice of learned Counsel, no defamation claim should be pursued prior to your criminal proceedings being concluded. The 12 month limitation period of the Daily Mail defamation will close on 24 August 2017, which on the present timetable means that this will expire before your criminal proceedings will conclude. Commencement of defamation can be extended in certain circumstances up to 3 years: http://www.austlii.edu.au/au/legis/vic/consul_act/loaa1958226/s23b.html - but it is not guaranteed. The limitation period will expire. We can, however, explore your prospects of bringing an out-of-time application if the criminal proceedings are concluded prior to the 3 year limitation period, but it is unlikely those out-of-time applications will succeed."
23. The evidence establishes that, as to the 2016 articles, Mr Spedding was advised in the strongest terms by senior and junior counsel with relevant expertise not to commence proceedings for defamation until after the conclusion of the criminal proceedings.
24. Ms Chrysanthou, who appears for the defendant, submitted that, whatever advice was given, the objective test requires the Court to undertake its own assessment of the reasonableness of commencing an action within one year after the date of publication. She submitted (in effect) that, as the plaintiff was not a convicted paedophile at the time of publication, he had a strong claim in defamation at that time and that, on an objective assessment, he had no reason not to commence proceedings immediately, regardless of the criminal proceedings.
25. Reasonable minds might differ as to the wisdom or appropriateness of a person facing charges for child sexual offences commencing defamation proceedings suing on an imputation of paedophilia. Much might depend on the instructions taken from the client. However, with great respect to Ms Chrysanthou, the fact of the advice received by Mr Spedding (whether sound or not) is clearly a relevant factor. The difficulty with the defendant's submission is that, in the present case, the plaintiff was: 1. told not to attend the conference with counsel; 2. advised afterwards that he had a reasonably strong case to recover damages from The Daily Mail for defamation; 3. strongly advised not to bring that case until after the resolution of the criminal proceedings, even though that would mean the limitation period would lapse.
26. Mr Brigden noted that it was open to Mr Spedding to seek advice from another solicitor and said he would not be offended if Mr Spedding took that course, but the defendant does not suggest he should have done so. In my view, the plaintiff was entitled to act on the advice received and it would not have been reasonable to do otherwise. I am satisfied that, faced with such strong advice, it was not reasonable for the plaintiff to commence proceedings in respect of the 2016 articles within one year after publication of those articles.
27. That is not the case in respect of the 2015 article, in respect of which the evidence is vague. I am not persuaded that it was not reasonable to commence proceedings for that cause of action.

Orders

1. For those reasons, I make the following orders: 1. that the limitation period for bringing an action on the causes of action for defamation pleaded in pars 3, 7 and 11 of the statement of claim filed 22 March 2018 be extended to 22 March 2018; 2. that the plaintiff's notice of motion filed 1 May 2018 otherwise be dismissed.

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: 14 December 2018