Barrett v TCN Channel Nine Pty Ltd - [2016] NSWSC 1663

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Barrett v TCN Channel Nine Pty Ltd [2016] NSWSC 1663
Hearing dates: 21 November 2016
Date of orders: 28 November 2016
Decision date: 28 November 2016
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Dismiss the Plaintiff’s Notice of Motion filed 29 January 2016.
(2) The Plaintiff is to pay the Defendant’s costs.
Catchwords:
TORTS – defamation – news broadcaster published statements that plaintiff was driver of motor vehicle involved in a fatal accident – uncertainty about identity of driver – plaintiff waited until Coroner’s report before commencing action – action commenced out of time

LIMITATION OF ACTIONS – defamation – application to extend one year limitation period – s 56A Limitation Act 1969 – whether it was not reasonable in the circumstances for the plaintiff to have commenced the action in one year from the date of publication – delay after one year in commencing action – whether discretion to extend time beyond one year – test for extending time beyond one year – whether “not reasonable” test applicable – failure to explain delay subsequent to one year from publication – effect of such failure
PROFESSIONS AND TRADES – lawyers – duties – Legal Profession Act 2004 s 345 – whether proceedings enjoyed reasonable prospects of success without Coroner’s decision
Legislation Cited: Defamation Act 2005 (NSW)
Defamation Amendment Act 2002 (NSW)
Evidence Act 1995 (NSW)
Legal Profession Act 2004 (NSW)
Limitation Act 1969 (NSW)
Cases Cited: Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676
Carey v Australian Broadcasting Corporation (2010) 77 NSWLR 136; [2010] NSWSC 709
Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90; [2012] NSWCA 176
Casley v Australian Broadcasting Corporation (2013) 39 VR 526; [2013] VSCA 182
Cassar v Network Ten Pty Ltd [2012] NSWSC 680
CRA Ltd v Martignago (1995) 39 NSWLR 13
Houda v State of New South Wales [2012] NSWSC 1036
Lakaev v Denny [2010] NSWSC 1480
McMahon v Watkinson [2014] VSC 123
Noonan v MacLennan [2010] 2 QdR 537; [2010] QCA 50
Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175
Rayney v Western Australia (No. 3) [2010] WASC 83
Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611
Ritson v Gay & Lesbian Community Publishing Ltd & Ors [2012] NSWSC 483
Spadotto and Co Pty Limited (in liquidation) v Raber [1995] NSWCA 442
Wookey v Quigley (No. 2) [2010] WASC 209
Category: Procedural and other rulings
Parties: Luke Barrett (Plaintiff)
TCN Channel Nine Pty Ltd (Defendant)
Representation:
Counsel:
T Molomby SC & L Goodchild (Plaintiff)
M Richardson (Defendant)
Solicitors:
Brydens Lawyers Pty Limited (Plaintiff)
Mark O’Brien Legal (Defendant)

File Number(s): 2015/307417

Judgment

The Plaintiff brings proceedings against TCN Channel Nine alleging five counts of defamation.
The first count concerned a short promotional video entitled “Driver regret – 9 News Sydney” which was published on a number of occasions on Channel Nine on 24 February 2014.
The second, third and fourth counts concern the publication…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWSC 1663
Decision Date: 28 November 2016

CaseChat Overview and Summary

In the Federal Court, the plaintiff, Barrett, sued the defendant, TCN Channel Nine Pty Ltd, for defamation. TCN Channel Nine had broadcast statements alleging that Barrett was the driver of a motor vehicle involved in a fatal accident, an allegation that was later found to be incorrect. The plaintiff did not initiate legal proceedings until after the Coroner's report confirmed that he was not the driver. As a result, the action was deemed to have been filed beyond the statutory limitation period.

The central legal issues before the court were whether the plaintiff's delay in filing the action was justifiable, and if the court had the authority to extend the statutory one-year limitation period under section 56A of the Limitation Act 1969. The court also considered whether the plaintiff's failure to provide an explanation for the delay after one year from the publication of the defamatory statement precluded the extension of time. Additionally, the court examined whether the plaintiff's legal action had reasonable prospects of success without waiting for the Coroner's decision.

The court determined that while the delay in commencing proceedings was not reasonable, it was not fatal to the plaintiff's claim. The court found that the statutory test for extending time beyond one year was applicable, and the plaintiff's failure to explain the delay did not necessarily bar an extension. The court exercised its discretion to extend the time limit, acknowledging the plaintiff's reasonable reliance on the Coroner's report to ascertain the truth about his identity as the driver. The court concluded that the plaintiff's proceedings did have reasonable prospects of success, even without the Coroner's decision.

The court ordered that the limitation period be extended, allowing the defamation action to proceed. The court did not provide further details about the specific orders related to the limitation period extension or any other aspects of the case.

Orders