Spedding v Dailymail.com Australia Pty Ltd

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

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.
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.
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.
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.
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.
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.
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.
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.
On 26 July 2016, Mr Spedding received the summons in relation to the Victorian allegations of historical child sexual abuse.
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.
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.
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.
On 12 December 2018, the proceedings were relisted and the parties were given leave to put on further evidence. Further submissions were also made.
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."
The affidavit annexes email correspondence between Mr Spedding and his previous solicitor, Mr Brigden of Priest Legal.
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.
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".
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."
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.
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."
The email concluded by noting that the limitation period would expire on 23 August 2017.
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."
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.
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.
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.
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.
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.

At a glance

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Judgment (7 paragraphs)

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Legislation Cited (1)

Cases Cited (3)

Cited By (2)