Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Carey v Australian Broadcasting Corporation [2012] NSWCA 176 Hearing dates: 13 March 2012 Decision date: 18 June 2012 Before: Beazley JA at [1];
McColl JA at [64];
Sackville AJA at [96]Decision: 1. Appeal dismissed;
2. The appellant is to pay the respondent's costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: DEFAMATION - Defamation proceedings commenced in Western Australia - Leave of the court is required to bring further proceedings in this jurisdiction pursuant to Defamation Act 2005, s 23 - Whether an order granting leave can be made retrospectively - Whether s 23 is a procedural provision and non-compliance may be cured retrospectively by an order nunc pro tunc
LIMITATION OF ACTIONS - Defamation proceedings not commenced within one year limitation period - Application for an extension of the limitation period under Limitation Act 1969, s 56A - Onus of proof - Whether test under s 56A(2) is wholly objective - Section 56A requires the court to be satisfied it was not reasonable in the circumstances to have commenced proceedings within the limitation period - Not wholly objective testLegislation Cited: Broadcasting Services Act 1992 (Cth)
Corporations (South Australia) Act 1990 (SA)
Corporations Law (Cth)
Criminal Procedure Act 2009 (Vic)
Defamation Act 1974
Defamation Act 2005
Interpretation Act 1987
Law Reform (Miscellaneous Provisions) Act 1946
Limitation Act 1969
Limitation Act 2005 (WA)
Supreme Court Act 1970Cases Cited: Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676
Australian Securities and Investment Commission, in the matter of Richstar Enterprises Pty Ltd v Carey [2006] FCA 366
Bermingham v Priest [2002] QSC 57; (2002) 35 MVR 547
Bropho v Western Australia [1990] HCA 24; 171 CLR 1
Buckley v The Herald & Weekly Times Pty Ltd (No 2) [2008] VSC 475
Ceric v C E Heath Underwriting and Insurance (Australia) Pty Ltd [1994] NTSC 101; 4 NTLR 135
Commercial Union Assurance Co v Ferrcom Pty Ltd (1991) 22 NSWLR 389
David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; 184 CLR 265
Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385; 133 ALR 206
Emanuele v Australian Securities Commission [1997] HCA 20; 188 CLR 114
Grunseth v Resource Planning and Development Commission [2007] TASSC 92; (2007) 17 Tas R 55
Hartley Poynton Ltd v Ali [2005] VSCA 53; (2005) 11 VR 568
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Lee v Kim [2006] NSWCA 384
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- Case
- [2012] NSWCA 176
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether an order granting leave under section 23 of the *Defamation Act 2005* (WA) could be made retrospectively, and whether section 23 was a procedural provision whose non-compliance could be cured retrospectively by an order *nunc pro tunc*. Additionally, the court had to determine whether the test under section 56A(2) of the *Limitation Act 1969* (WA) for granting an extension of the limitation period was wholly objective, and whether the court was satisfied that it was not reasonable in the circumstances to have commenced proceedings within the limitation period.
The Court of Appeal dismissed the appeal. It held that section 23 of the *Defamation Act 2005* (WA) was a substantive provision, not merely procedural, and therefore could not be cured retrospectively by an order *nunc pro tunc*. The court also found that the test under section 56A(2) of the *Limitation Act 1969* (WA) was not wholly objective, and that the appellant had not satisfied the court that it was not reasonable to have commenced proceedings within the limitation period. Consequently, the appellant was ordered to pay the respondent's costs.
Orders
Orders of the court
1. Appeal dismissed;
2. The appellant is to pay the respondent's costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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