Bidstrup v Cullen - [2013] SASC 136

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
BIDSTRUP v CULLEN
[2013] SASC 136
Judgment of The Honourable Justice Anderson
23 August 2013
DEFAMATION - ACTIONS FOR DEFAMATION - OTHER PROCEEDINGS BEFORE TRIAL - OTHER MATTERS
LIMITATION OF ACTIONS - LIMITATION OF PARTICULAR ACTIONS - SIMPLE CONTRACTS, QUASI-CONTRACTS AND TORTS - OTHER MATTERS
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PLEADINGS
Judgment on a preliminary point.
The plaintiff pleads three causes of action against the defendants for conspiracy, injurious falsehood and defamation. The plaintiff alleges defamatory statements were made by the defendants on or about 5 August 2009. The plaintiff issued proceedings on 31 July 2012. The limitation period for the defamation cause of action expired one year after the cause of action arose.
The first application relates to whether the defendant can set aside an order made by a master on 23 January 2013 extending the time for the service of the summons to 28 February 2013. The second application is whether the plaintiff can have the limitation period for the defamation action extended to 31 July 2012.
Held: First application dismissed - order for extension of service upheld.
Held: Second application allowed - limitation period of defamation action extended to 31 July 2012.
Limitation of Actions Act 1936 (SA) s 37(1) and s 37(2); Supreme Court Civil Rules 2006 r 39, referred to.
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; Chapman & Anor v Australian Broadcasting Corporation (2000) 77 SASR 181, applied.
Ulowski v Miller [1968] SASR 277; Weston & Anor v Publishing & Broadcasting Ltd & Ors [2011] NSWSC 433; Noonan v MacLennan [2010] QCA 50; Pingel v Toowoomba Newspapers [2010] QCA 175; Houda v State of New South Wales [2012] NSWSC 1036; Carey v The Australian Broadcasting Commission [2012] NSWCA 176, considered.

BIDSTRUP v CULLEN
[2013] SASC 136
Civil

ANDERSON J.
Introduction
In this matter the plaintiff alleges that he was defamed by the defendants Mr Cullen and Mr Lance. The State of South Australia has accepted that if the defamation is proved it will be vicariously liable for Mr Cullen and Mr Lance.
The plaintiff is a cardiothoracic surgeon. So is the defendant Mr Cullen. Mr Lance is a thoracic surgeon. The plaintiff alleges that defamatory statements were made by both Mr Cullen and Mr Lance on or about 5 August 2009. The alleged statements relate to the credentials and competence of the plaintiff. At the relevant time each of the plaintiff and two defendants were working at the Flinders Medical Centre (“FMC”). The plaintiff was undertaking refresher training under the supervision of another cardiothoracic surgeon, Mr John Knight, having come from Queensland for that purpose.
The plaintiff claims that he has always been unable to plead in specific terms the precise words or the occasion of the alleged defamation although he was aware of the contents of the alleged defamatory statements in general terms.
The statement of claim pleads three causes of action against the defendants for conspiracy, injurious falsehood and defamation and claims damages for each as well as aggravated and exemplary damages. The causes of action arose on or about 5 August 2009. The limitation period for the plaintiff’s cause of action in defamation expired one year after the cause of action arose. The proceedings were not issued until 31 July 2012 and therefore the plaintiff relies on the provisions of s 37 of the Limitation of Actions Act 1936 (SA) (“the Act”). Section 37(1) provides that an action for defamation is not maintainable if brought after the period of one year running from the date of the publication of the matter complained of.
In those circumstances pursuant to s 37(2) the plaintiff is required to satisfy an onus. Section 37(2) reads:
(2)However, 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 subsection (1) to a period of up to 3 years running from the date of the publication (but no further extension is to be allowed under any other provision of this Act).
In this matter there are two interlocutory applications to be dealt with. The first is by FDN 13 in which the plaintiff applies for an extension of the limitation period for his cause of action in defamation to be extended to 31 July 2012. The application is made pursuant to s 37(2) of the Act.
The second application is by FDN 17 in which the State of South Australia seeks to set aside an order made by a master on 23 January 2013 that the time for the service of the summons in these proceedings be extended to 28 February 2013 pursuant to rule 39 of the Supreme Court Civil Rules 2006.
As I have indicated, the alleged defamatory statements were published on or about 5 August 2009. The exact circumstances of the publication as to where the alleged statements were made, to whom they were made and when they were made are unknown to the plaintiff.
Background
In the statement of claim the plaintiff makes allegations concerning the alleged defamatory statements made by both the defendants Mr Cullen and Mr Lance. The plaintiff alleges in paragraph 4.3.11 that on or about 5 August 2009 Mr Cullen told Mr Symonds and/or Ms Thomson (both employees of FMC) that:
·the nature of Mr Bidstrup’s refresher training was not properly explained to the unit and that Mr Cullen lacked knowledge of the circumstances in which Mr Bidstrup visited FMC; and
·that Mr Bidstrup was not credentialed to participate in surgery at FMC at the time of Mrs Allan’s surgery (the credentialing allegations); and
·that during Mrs Allan’s surgery Mr Knight left the operating theatre at an inappropriate time; and
·that Mr Bidstrup inserted the cannula into Mrs Allan’s left coronary artery and administered the second dose of cardioplegia and by doing so caused her death; and
·that Mr Bidstrup made the decision to take Mrs Allan off bypass (together with the previous two matters, the Mrs Allan allegations).
Then in paragraphs 4.3.16 and 4.3.17 the plaintiff alleges that Messrs Cullen and Lance communicated the credentialing allegations and the Mrs Allan allegations to Ms Howard (a director of Southern Adelaide Health Services) and Ms Thomson on or around 12 August 2009. Southern Adelaide Health Services is an organisation which has authority over services provided at FMC.
It is also alleged by the plaintiff in paragraph 8.3 that Mr Lance communicated the allegations to Ms Thomson, Dr Morton, Professor Aylward and Mr Bennetts (also employees of FMC) on 6 August 2009.
On the face of it the first allegation above is not defamatory of the plaintiff.
The second point may be. The third imputes professional negligence. The fourth is on its face defamatory and the final point may be defamatory.
These matters will probably be advanced and refined when the plaintiff inspects the volumes of documents obtained by way of third party discovery. I was advised that this process has just commenced.
There is a relevant chronology of events which appears from the affidavit of Mr Bidstrup. He deposes that on 25 August 2009 he was informed by telephone by Professor Knight that allegations as detailed above which were defamatory of him had been made. He says that at that stage he did not know the source of the defamatory statements. He says that on 28 October 2009 the Medical Board of Queensland issued a notice to him advising that the credentialing allegations and the Mrs Allan allegations were to be included in an existing investigation which was being undertaken regarding him in Queensland.
Mr Bidstrup says that, on the basis of a letter written by Ms Miller, the Chief Executive Officer of the Southern Adelaide Health Service, on 1 September 2009 advising the Medical Board of Queensland of the allegations, he took legal action against Ms Miller for defamation. He says that he ultimately discontinued these proceedings because of his concern that the defamatory statements may have been protected by qualified privilege. The suggested defamatory remarks in that letter were broad and did not identify the maker of the statements, the occasion or to whom the statements were made.
Mr Bidstrup says that on 6 November 2009 he became aware that there was going to be a coronial inquest into the death of Mrs Allan. The inquest took place between 30 November 2009 and 3 September 2010. He says that during the course of the inquest he received copies of statements and other documentation which “led me to believe that the source of the defamatory statements were the first and second defendants Messrs Cullen and Lance”. He does not say what was the basis of his belief or when exactly he became aware of the documentation. It is apparent from other evidence that he had solicitors Blake Dawson acting for him at that stage.
The Coroner handed down his findings on 28 March 2011. The effect of the Coroner’s findings was that he found the credentialing allegations and the Mrs Allan allegations to be false.
Mr Bidstrup says that he instructed his solicitors, presumably Blake Dawson, to prepare proceedings against both Messes Cullen and Lance claiming conspiracy, malicious falsehood and defamation arising out of their allegations. One presumes, although the affidavit does not make it clear, that these instructions were given at around about the time the Coroner handed down his findings on 28 March 2011. There is no explanation for what happened after Mr Bidstrup gave instructions to issue proceedings.
The alleged defamatory statements, having been made on or about 5 August 2009, required proceedings to be issued within 12 months pursuant to s 37(1). Therefore by the time the Coroner handed down his findings approximately one year and eight months had passed after the publication of the matter complained of.
Mr Bidstrup says that in February 2012 he became aware that Professor Knight had brought proceedings against the State of South Australia. Mr Bidstrup believed that during the course of the Knight proceedings there would be evidence relating to the defamatory statements of Messrs Cullen and Lance. Mr Bidstrup maintains in his affidavit that he is still unaware of the precise defamatory statements published by Messrs Cullen and Lance.
Extension of time for service
On 11 December 2012 the plaintiff filed an interlocutory application for an extension of time to serve the proceedings issued on 31 July 2012 on the defendant. The application was not listed until the 17 January 2013. The plaintiff’s solicitors attempted to get the application before the court at an earlier date, due to its urgency, but this did not occur. This was not the fault of the plaintiff. When the application came before the court on the 23 January 2013 the master adjourned the matter for hearing to the 21 February 2013 and extended the time for service to the 28 February 2013. This order was made to allow time for the defendants to be notified and have the opportunity to express their position on the extension of the time for service by six months.
On 25 January the defendant obtained copies of the summons, statement of claim and the interlocutory application from the civil registry. On the 4 February, as ordered by the master at the 23 January hearing, the plaintiffs gave notice to the defendants of the extension of time to serve proceedings. There was correspondence between the parties, resulting in an agreement to stay the proceedings until the conclusion of the Knight matter. The application to extend the time for service by six months was dismissed and an order by consent to stay the proceedings was made by the master on 21 February. The proceedings were served on 22 February. The initial period for the serving of documents expired on 31 January.
The defendant now seeks to have the extension made by the master on the 23 January set aside, thus rendering the service of the proceedings invalid.
Mr Wells QC who appeared with Mr Whitington QC for the plaintiff submitted the extension made by the master was a nominal one and the delay was wholly administrative. He submitted the plaintiff attempted to have the application heard earlier so that the plaintiff could still serve the documents in time if the extension of six months was not granted. Mr Wells referred the court to the decision in Ulowski v Miller [1968] SASR 277. That decision was in the context of dismissal for want of prosecution. Mr Wells referred the court to the principles as stated by Bray CJ at 280 as guidance for the factors to take into account when deciding whether to grant an extension, namely, the length of the delay and the reason for the delay. In these circumstances, he submitted, the length of delay was minimal (less than a month) and the reason was simply that by the time the application came before a master there was not time to have an inter partes hearing prior to the expiration of the limitation period.
Mr Wells queried whether the defendants had a right in the circumstances to make an application to set aside the order of extension. In any event he submitted that it was not reasonable to set it aside in circumstances where the defendants had already committed themselves to a course of action – that is, an agreement as to a stay of proceedings. He submitted there was no evidence to indicate the defendant was prejudiced by the extension.
Mr Evans QC for the defendants submitted it was not appropriate to extend the time for service of documents when there were still eight days available within the original six months allowed for service. He referred the court to the decision of Weston & Anor v Publishing & Broadcasting Ltd and Ors [2011] NSWSC 433, in which there was an application by the defendants to set aside ex parte orders extending the time for service of the statement of claim. Ward J stated at [142] that the court is to exercise afresh the discretion whether to grant an extension of time for the service of the statement of claim as at the relevant time. Mr Evans submitted the plaintiff would need to satisfy the court that the order should have been extended at the 23 January hearing date. He submitted the plaintiff is therefore asking the court for the indulgence to serve beyond six months. He submitted the plaintiff did not serve proceedings earlier in the six months period, and sought the extension to avoid consolidating the Knight proceedings with the Bidstrup proceedings. Mr Evans submitted that this caused prejudice to the defendant because the delay meant the matter could not then be consolidated with the Knight proceedings. He submitted this was an additional prejudice to the defendant from this delay when combined with the delay in commencing proceedings on the 31 July 2012. He submitted the defendant only consented to a stay as it was involved in the Knight proceedings and it would be a practical and commonsense decision to reserve positions.
I agree with Mr Wells’ submission. From the evidence before me the extension made on the 23 January 2013 was an administrative decision brought about as a result of the delay in hearing the application until late January. The order to extend the time for service was made so that a hearing could be set for both parties to make submissions on whether an extension of time for service should be made.
The defendant was in a position to oppose any such extension but chose to consent to a stay of proceedings albeit reserving to itself its rights. In my view in those circumstances it would be most unfair to the plaintiff to reverse the order for an extension of service and I therefore dismiss the defendants’ application to have the order of the master set aside.
Should the decision on s 37(2) be deferred to trial?
Mr Whitington QC made submissions regarding s 37(2). Detailed written submissions were provided but on the hearing before me Mr Whitington advanced an argument orally that was not contained within the written outline. The argument presented is an argument based on a practical and commonsense approach whereas the merits are advocated by Mr Whitington in his written outline.
He submitted that at this point the plaintiff is still unable to precisely articulate the exact terms of the publication of the defamation. That is so both in respect of the words used, by whom the words were spoken and also the exact occasion on which the words were allegedly spoken.
Mr Whitington submitted that in order to answer the question as to whether it was not reasonable for the plaintiff to have commenced his action within the period of one year from the date of publication it is only fair that he is entitled to give evidence at the trial and that other evidence be called in support of his case to determine the question, namely, how much he should reasonably have known within the 12 month period. Mr Whitington submitted that it is an essential part of a defamation action to be able to specify the actual words and details of the publication as precisely as possible. He further submitted that the court needs to hear all that evidence about the nature of the materials available, Mr Bidstrup’s state of mind and other matters of evidence which will not become apparent until trial. Mr Whitington submitted that it was only then after that evidence was heard that it would be possible to fairly interpret whether it was not reasonable to commence proceedings within the 12 months.
It is my view that, because of the clear onus on the plaintiff, he is required to put before the court all the information upon which he relies for the exercise of the discretion. It is not an answer in my opinion to say that these matters will all be answered in due course in the trial. The defendant is entitled to know in a ruling before trial whether it faces an action in defamation or not. It is not to the point that many of the same facts will be canvassed in the other causes of action. The fact is that the plaintiff has chosen to sue in defamation because it enables him to claim damages for loss of reputation amongst other things. In my view it would be unfair to the defendant to not know the extent of the damages being sought from it prior to entering upon a trial. I therefore reject Mr Whitington’s argument that the issues should be deferred until the trial evidence is taken.
The case advanced on s 37(2)
I will now consider the application of the test in s 37(2), and whether the plaintiff has satisfied the onus of this section.
Mr Whitington submitted the test under this section is whether it was not reasonable for the plaintiff to have issued the claim during the one year limitation period following the alleged defamatory statements being made. He submitted if this onus is satisfied the extension must be granted as per s 37(2) of the Act.
Mr Whitington submitted that while Mr Bidstrup knew that something was said and could provide some circumstantial evidence surrounding the statements, Mr Bidstrup could not identify the exact terms of the defamation or publication and identity of the publisher within the 12 month period following the alleged statements being made, and that in fact he still is unable to sufficiently particularise the alleged defamatory statements. Mr Whitington referred the Court to the case of Noonan v MacLennan [2010] QCA 50. In this matter the plaintiff commenced an action for damages for defamation more than one year after the date of the alleged defamatory publication. Keane P at [17] held that where a plaintiff is unable to establish the extent of the defamation, or is without the evidence necessary to establish their case during the year after the publication, it may not be reasonable to commence proceedings within the year. Mr Whitington also referred the court to Pingel v Toowoomba Newspapers [2010] QCA 175. In Pingel, the plaintiff issued proceedings outside the one year limitation period. The plaintiff’s explanation was that the defendant had indicated a willingness to resolve the matter without the institution of proceedings, and secondly she did not have certain information regarding the publication. Fryberg J stated at [56] that it is not possible for a person to commence proceedings for defamation if unaware of the fact of the publication or the identity of the publisher.

Mr Whitington submitted that not only did Mr Bidstrup lack sufficient particulars to commence the action within the one year period, but it would have been foolish to begin proceedings in circumstances where he was awaiting the outcome of the Coroner’s investigations into the matters to which the alleged defamatory statements refer. Mr Whitington submitted that prior to the Coroner’s findings being brought down on 28 March 2011, Mr Bidstrup could not reasonably bring proceedings because, if the findings had been against him, the embarking on defamation proceedings in those circumstances would have been “ludicrous” as he would have little chance of meeting a defence of justification.
Mr Whitington submitted the case of Houda v State of New South Wales [2012] NSWSC 1036 as support for this proposition. In Houda, the plaintiff did not issue defamation proceedings within the limitation period as the success of the defamation action would be “closely linked” to the outcome of a criminal prosecution against Mr Houda. McCallum J stated at [35] that “Had he been convicted … the prospect of then vindicating his reputation in a civil action would have been derisory”. Mr Whitington submitted the plaintiff’s explanation was in a similar vein to that in Houda.
In regards to prejudice to the defendant, should the extension be granted, Mr Whitington submitted that any prejudice would be small given the evidence for the defamation claim was essentially the same evidence that would be brought for the other claims. He referred to the decision in Carey v The Australian Broadcasting Commission [2012] NSWCA 176, in which the plaintiff argued it was not reasonable to issue proceedings as he was unable to sustain an action financially, and because he had engaged alternative procedures with the defendant to handle his complaint. Beazley JA stated at [55] that the discretion as to whether to grant an extension of time for an action did not involve the consideration of any prejudice to the defendant, but it does impose an onus on the plaintiff to satisfy the court that it was not reasonable in the circumstances to bring proceedings within the limitation period.
Mr Evans submitted that the reasons provided by Mr Bidstrup in his affidavit could not satisfy the court that it was not reasonable in the circumstances to issue proceedings. He submitted that the information available to Mr Bidstrup as of August 2009 was sufficiently precise to commence proceedings, and that it would have been appropriate to have issued proceedings within the one year limitation period.
Mr Evans submitted that Noonan supported his proposition that it would not have been “speculative or irresponsible” to issue within the one year limit, as the plaintiff had a reasonable basis for a claim – the information which became available to him in August 2009. Mr Evans submitted there has been no new information forthcoming between August 2009 and 31 July 2012 when proceedings were issued. Mr Evans further submitted there has been no explanation by the plaintiff as to the large period of inaction in which proceedings were not issued, and that the Knight proceedings do not explain the lack of activity in the period prior to February 2012. Mr Evans distinguished the circumstances of this case from those in Pingel, in that he submitted Mr Bidstrup did not say he did not know the fact of the publication, nor that he did not know, even if it may have been by way of circumstantial evidence, on all of the material, the source of the publication.
In regards to Mr Whitington’s submission that it would have not been reasonable to issue proceedings prior to the Coroner’s findings being handed down, Mr Evans submitted Mr Bidstrup formed the view he was in a position to advance his claim during the course of the Coroner’s inquest, thus there was no sufficient explanation from him as to why he did not proceed prior to July 2012. He submitted Houda does not support the plaintiff’s application, due to the different circumstances, in that Mr Houda was involved in a criminal proceeding where his loss of right to silence would have been impacted by issuing proceedings any earlier. Mr Evans noted the coronial inquest was not mentioned in Mr Bidstrup’s affidavit as a reason not to issue proceedings.
Mr Evans submitted that the onus being upon the plaintiff, Mr Bidstrup could not expect the discretion of the court to be exercised in his favour, as the plaintiff had not passed the threshold test as to whether it was not reasonable to issue proceedings within one year.
Consideration of the case advanced on s 37(2)
Whilst I agree with Mr Evans that the plaintiff’s affidavit, in itself, does not provide sufficient explanation for the delay in proceedings, I am mindful of the nature of defamation proceedings and the need for precise detail in particularising such a claim. I need to look at not only to the affidavit but all the surrounding circumstances including the Coroner’s inquest, to determine if it was not reasonable to issue proceedings within one year. The authorities submitted by Mr Whitington support this proposition.
The plaintiff has to rely on the natural and ordinary meaning of the words used for the proof of the defamation alleged. It is important in such an action for the pleadings to contain the precise words used, the occasion and those present if it is possible as per Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37. Brennan CJ and McHugh J stated at [16]:
A bare pleading of the words complained of may prejudice or be embarrassing to the defendant in pleading a denial of the defamation or a plea of confession and avoidance and may prejudice the trial judge’s ability to determine objections to evidence.
If the statement of claim were to stand as is, Mr Evans may consider an application to strike it out for lack of particulars. A defendant has to know the precise imputation alleged by the plaintiff in order to determine whether to apologise or to defend the matter and if to defend upon what ground: Chapman & Anor v Australian Broadcasting Corporation (2000) 77 SASC 181 per Lander J at [55].
The most important factor in my opinion is the point made by Mr Whitington, namely, that Mr Bidstrup had to wait on the Coroner’s findings to see if a finding was made that he was not properly credentialed and as to whether his actions had caused the death of Mrs Allan. It is the Coroner’s duty to determine a cause of death, and this decision was vital to the future conduct of any action. The Coroner made findings which were contrary to the alleged defamatory statements which gave Mr Bidstrup the green light to issue proceedings.
As to Mr Evans’ point, that nothing new occurred after Mr Bidstrup said he became aware of documentation provided during the inquest, in my view the answer is that without the Coroner’s findings it was imprudent for Mr Bidstrup to take action. Whilst he may have received some information it would be worthless if the Coroner eventually found that he was the cause or a substantial cause of Mrs Allan’s death or that the credentialing allegations were made out.
I am not convinced that the defendant will suffer any prejudice other than defending the additional cause of action and the possibility that it may have been able at an earlier point in time to apply to consolidate this action and the Knight action which was settled. Those matters to a large extent can be measured in costs. Over and above any prejudice in costs being incurred I am not convinced that the plaintiff’s application should fail because of any perceived prejudice to the defendants.
I find that it was reasonable to await the outcome of the Coroner’s inquest. Applying the relevant test under s 37(2) I find that it was not reasonable for Mr Bidstrup to have commenced his action within one year of the publication when he had incomplete information regarding a lack of particularity and whilst he was aware that a Coroner’s inquest may determine the facts of his action.
Therefore in the terms of s 37(2) I must extend the limitation period. I am asked by the plaintiff to extend the period up to the date of the issue of the proceedings, namely 31 July 2012.
I have come to the view that there should be such an extension. Nothing would be served by granting an extension for a lesser period. The plaintiff was in the same position regarding lack of particularity from the time of the Coroner’s findings to the date when proceedings were issued. Indeed it is Mr Evans’ point that nothing new has occurred in that time.
The plaintiff has been unable so far to plead with sufficient particularity the actual defamatory statements. Even with the Coroner’s findings that has not been possible because neither Mr Cullen nor Mr Lance gave evidence.
The plaintiff made an attempt to ascertain further information from the defendant but that information was not forthcoming. He has recently obtained voluminous documentation by way of third party discovery from the Knight action. Hopefully this will enable the pleadings to be amended and contain more precise allegations of the defamatory statements alleged.
I will need to hear the parties as to the form of the orders which should follow. That will include orders as to the provision of particulars within a certain time. It will also enable the defendants to make an application to strike out if, when the particulars are provided, they are not sufficient to support a claim for defamation.
I therefore order an extension pursuant to s 37(2) to 31 July 2012.