Carey v Australian Broadcasting Corporation - [2012] NSWCA 176

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 test
Legislation 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 1970
Cases 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; (2006) 68 NSWLR 433
MAC v R [2012] VSCA 19
Macquarie Bank Ltd v Berg [2002] NSWSC 254
Masri Apartments Pty Ltd (in liq) v Perpetual Nominees Ltd [2004] NSWCA 471; (2004) 214 ALR 338
Murphy v Lewis [2009] QDC 37
National Mutual Fire Insurance Co Ltd v Commonwealth of Australia [1981] 1 NSWLR 400
Noonan v MacLennan [2010] QCA 50; 2 QdR 537
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Racic v Haltiner [2010] ACTSC 63; (2010) 4 ACTLR 224
Rayney v State of Western Australia (No 3) [2010] WASC 83
Re Sydney Formworks Pty Ltd [1965] NSWR 646
Re Testro Bros Consolidated Ltd [1965] VR 18
South Johnstone Mill Ltd v Dennis [2007] FCA 1448, (1997) 163 FCR 343
Spautz v Kirby (1989) 21 NSWLR 27
Tasker v Fulwood [1978] 1 NSWLR 20
Torsir Pty Ltd v Maxgrow Developments Pty Ltd (1995) 121 FLR 170; 18 ACSR 201
Woods v Bate (1986) 7 NSWLR 560
Texts Cited: Report on Defamation (New South Wales Law Reform Commission, Report 11)
Report on Defamation (New South Wales Law Reform Commission, Report 75)
The Second Reading Speech to the Defamation Bill 1974 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 27 February 1974)
Category: Principal judgment
Parties: Norman Phillip Carey (Appellant)
Australian Broadcasting Corporation (Respondent)
Representation: Counsel:
T Molomby (Appellant)
T K Tobin QC; A T S Dawson (Respondent)
Solicitors:
RBHM Commercial Lawyers (Appellant)
ABC Legal Services (Respondent)

File Number(s): 2010/249566
Publication restriction: No
Decision under appeal

Citation:

Carey v ABC [2010] NSWSC 709

Date of Decision:

2010-06-30 00:00:00

Before:

McCallum J

File Number(s):

SC 09/297543

Judgment

BEAZLEY JA: On 1 May 2009, the appellant filed a statement of claim in the Supreme Court of New South Wales, claiming damages for defamation. The alleged defamation arose out of two publications. The first was a broadcast on the respondent's Four Corners program on 8 May 2006 in a documentary entitled, "The Boys". The second publication comprised a transcript of the Four Corners program maintained by the respondent on its website until shortly after the filing of the statement of claim. The appellant's claim, based upon the Four Corners program, was brought outside the one year limitation period prescribed by the Limitation Act 1969, s 14B.

The claim based upon the transcript published on the respondent's website was also brought outside the one year limitation period, insofar as the claim was based upon publication from 8 May 2006 until one year prior to the issue of the statement of claim. There was no limitation issue in respect of the maintenance of the transcript on the respondent's website in the one year period prior to the filing of the statement of claim.

At the same time that he filed his statement of claim, the appellant filed a notice of motion seeking orders that the limitation period be extended in respect of the Four Corners program pursuant to the Limitation Act, s 56A, and in respect of that portion of the publication of the transcript on the website from 8 May 2006 until one year prior to the filing of the statement of claim.

The proceedings initiated by the statement of claim were not the first proceedings brought by the appellant based on the alleged defamatory publications.

The appellant had commenced defamation proceedings in respect of these publications in the Supreme Court of Western Australia by the filing of a writ of summons against the respondent on 8 May 2007. That writ of summons was filed within the one year limitation period prescribed by the Limitation Act 2005 (WA), s 15. However, the writ of summons was never served upon the respondent and the time within which it was valid for service had expired. No application had been made in Western Australia for an extension of the period in which to serve the writ of summons.

During the course of the hearing of the appellant's notice of motion for an extension of the limitation period, the appellant recognised that as a result of the commencement of proceedings in Western Australia, he required leave of the Court to bring the present defamation proceedings: Defamation Act 2005, s 23. He made an oral application for leave under the section. The trial judge refused leave to the appellant on the basis that an order granting leave under that section could not be made retrospectively.

Her Honour also refused to extend the limitation period on the basis that the appellant had not satisfied her that it was not reasonable to have commenced proceedings within the one year limitation period. Her Honour consequently ordered that the proceedings be dismissed with costs.

The appellant challenges her Honour's orders in refusing leave under s 23 and in refusing to extend the limitation period.

Before dealing with the issues raised on the appeal, one more factual matter needs to be noted. On 10 June 2010, being the second day of the hearing of the notice of motion, the appellant made a further application pursuant to s 23 for leave to bring proceedings for the continuing publication of the transcript of the Four Corners program on the respondent's website during the 12 month period up to the time shortly after the statement of claim was filed. That course was opposed by the respondent. Her Honour did not determine that application as part of her determination in these proceedings. Rather, her Honour considered that the appropriate course was for the appellant to produce a draft pleading of the cause of action he sought leave to bring pursuant to s 23 and to seek leave by summons to file that statement of claim. This Court is not concerned with that matter.

It is convenient to deal first with the s 23 issue.

The section 23 issue

The appellant contended that her Honour erred in law in determining that leave pursuant to s 23 cannot be granted retrospectively.

The Defamation Act, s 23 provides:

"23Leave required for further proceedings in relation to publication of same defamatory matter

If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought."

The trial judge stated, at [24], that the clear language of s 23 "evince[d] an intention to address the vice of multiple proceedings". Her Honour observed that the provision did so by placing the onus on a plaintiff who had commenced proceedings (whether within the jurisdiction or not) to persuade the court in which the further proceeding was to be brought that it would not be an abuse of process to do so. Her Honour held, at [25], that she did not have power to grant leave retrospectively.

Her Honour was reinforced in her construction of s 23 by the obiter statement of Hunt J in Spautz v Kirby (1989) 21 NSWLR 27 in respect of the equivalent provision in the Defamation Act 1974, s 9(3). In respect of that provision, Hunt J said, at 30:

"The requirement that leave be obtained is on its face intended to prevent an abuse of process when separate and successive proceedings are brought against the same defendant in respect of the same matter (as defined). There is nothing in the statute which warrants an interpretation of s 9(3) that the plaintiff may validly bring the proceedings without leave provided that leave is obtained subsequently if and when objection is taken to them. The abuse has already happened by that stage."

The appellant submitted that her Honour's construction of s 23 was incorrect. He submitted that s 23 was a procedural provision, so that non-compliance could be cured retrospectively by an order nunc pro tunc. The appellant submitted that the construction for which he contended was well based in the principles stated by this Court in Woods v Bate (1986) 7 NSWLR 560 at 567 per McHugh JA (as his Honour then was) (Hope JA agreeing) and by the High Court in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 390-391. The appellant also submitted that his preferred construction was supported by authority and, in particular, the High Court's decision in Emanuele v Australian Securities Commission [1997] HCA 20; 188 CLR 114. The appellant's submission recognised that if the section was a precondition to jurisdiction, then retrospective leave could not be granted.

In Woods v Bate, McHugh JA, at 567, stated that there were many examples of cases where the validity of an act was upheld, even though an anterior condition had not been fulfilled. His Honour considered this was appropriate:

"... unless the purpose of the provision can only be achieved by invalidating the result of any departure from it, irrespective of the circumstances or resulting injustice ..."

Although Woods v Bate was decided in the context of the classification of statutory conditions as "mandatory" or "directory", the quoted extract states a fundamental principle of statutory construction.

In Project Blue Sky, the High Court was concerned with the Broadcasting Services Act 1992 (Cth), s 160, which declared that the Australian Broadcasting Authority (ABA) was to perform its functions in a manner consistent with:

"(d)Australia's obligations under any convention to which Australia is a party or any agreement between Australia and a foreign country."

The appellant had contended that this provision required the ABA to comply with an existing Trade Agreement and Protocol entered into by the Australian and New Zealand governments. It argued that because the Australian Contents Standard (the Standard) developed by the ABA pursuant to the Act gave preference to Australian content, it was invalid.

The plurality (McHugh, Gummow, Kirby and Hayne JJ), at 381-382, stated the primary rule of construction in the following terms:

"... 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed' [Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390 at 397 per Dixon CJ]. Thus, the process of construction must always begin by examining the context of the provision that is being construed ...

Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was 'a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent'." (citations omitted)

In dealing specifically with the question whether the failure to comply with s 160(d) meant that the Standard was invalid, their Honours, at 388-389, stated:

"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition."

Their Honours added, at 389:

"The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue." (citation omitted)

Their Honours, at 390, eschewed the mandatory/directory distinction as providing the answer to the question of validity, noting that that approach had spawned a series of irreconcilable decisions. After observing that the classification of statutory provisions into "mandatory" or "directory" was unhelpful, stated, at 390:

"A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid ... In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'."

In determining that the Standard was not invalid due to non-compliance with s 160(d), their Honours had regard to the following factors. First, s 160 regulated the exercise of functions already conferred by other provisions of the Act. Secondly, not all of the provisions in s 160 had a rule like quality. For example, s 160 required the ABA to carry out its functions consistent with, inter alia, any general policies of the Government notified to it by the Minister. As their Honours observed, whether there had been compliance with this provision could be a matter upon which there might be widely differing views. This notion, that s 160 regulated a function already conferred by other provisions of the Act, is redolent of the approach taken to provisions such as the Corporations Law (Cth), s 459P, discussed in Emanuele.

Their Honours also noted, at 392:

"Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act. Having regard to the obligations imposed on the ABA by s 160, the likelihood of that body breaching its obligations under s 160 is far from fanciful, and, if acts done in breach of s 160 are invalid, it is likely to result in much inconvenience to those members of the public who have acted in reliance on the conduct of the ABA." (citation omitted)

Emanuele involved the construction of the Corporations Law, s 459P. Under the Corporations Law, s 459A, the Court was empowered to order that an insolvent company be wound up in insolvency. Section 459P provided for the entitlement of entities to make an application to wind up under s 459A. Certain of those entities were only entitled to apply for a winding up order with the leave of the court: s 459P(2), which provided:

"An application by any of the following, or by persons including any of the following, may only be made with the leave of the Court ..."

Four categories of persons or entities were specified as requiring leave to make an application to wind up the company in insolvency. Section 459P(3) provided that the Court may grant leave if satisfied there was a prima facie case the company was insolvent, but not otherwise. Pursuant to s 459P(4), leave might be granted subject to conditions. Section 459P(5) provided that, except as permitted by the section, a person could not apply for a company to be wound up in insolvency.

Dawson, Toohey and Kirby JJ construed s 459P(2) as permitting the grant of leave nunc pro tunc. Brennan CJ and Gaudron J held to the contrary.

Dawson J agreed with Toohey J. In short additional remarks, Dawson J observed, at 125, that s 459P did not confer jurisdiction on the Federal Court to make the winding up order. That jurisdiction was relevantly conferred by s 459A. Section 459P prescribed the parties entitled to make an application for a winding up order and specified that certain parties required leave to make an application. Dawson J considered that the failure of the Commission in that case to obtain leave was a mere defect or irregularity in the exercise of the court's jurisdiction. The failure to obtain leave was procedural and did not affect the validity of the order made. As the failure did not go to jurisdiction, his Honour considered that there was no reason why the Full Court of the Federal Court could not have cured the defect or irregularity by granting leave nunc pro tunc. His Honour considered there was ample authority for having taken that course: see Re Testro Bros Consolidated Ltd [1965] VR 18.

Toohey J also considered that the court's jurisdiction to make a winding up order was to be found in s 459A. His Honour noted that s 459A, in combination with Corporations (South Australia) Act 1990 (SA), s 42(3), which provided that "[j]urisdiction is conferred on the Federal Court with respect to civil matters arising under the Corporations Law of South Australia", was relevantly the source of the Federal Court's jurisdiction. Section 459P was not, however, a jurisdiction-conferring provision, nor did it create a cause of action or go to the relief that may be granted.

Toohey J referred to the comment of Gallop ACJ and Morling AJ in Ceric v C E Heath Underwriting and Insurance (Australia) Pty Ltd [1994] NTSC 101; 4 NTLR 135 at 146 in respect of a statutory requirement that an action not be commenced except with leave of the court, where their Honours said, "[w]e find it difficult to describe a proceeding commenced in a court which has jurisdiction to entertain the proceeding as a nullity".

His Honour also noted the observation of Sholl J in Re Testro Bros Consolidated Ltd, at 33-34, that:

"There is ... a uniform set of authorities in Australia, extending over seventy years, for the granting of leave under such sections, nunc pro tunc ... clearly the absence of leave is not a matter going to jurisdiction."

As Sholl J also observed, at 35:

"Such legislation is aimed at preserving the control of the Supreme Court over the administration of a company's affairs, a purpose which is sufficiently achieved by interpreting sections like s 199 rather as conferring a control of a directory character on the Court, than as setting up an absolute bar like a statute of limitations."

Toohey J noted that this approach was followed by McClelland CJ in Eq in Re Sydney Formworks Pty Ltd [1965] NSWR 646.

Toohey J next referred to National Mutual Fire Insurance Co Ltd v Commonwealth of Australia [1981] 1 NSWLR 400. That case dealt with the Law Reform (Miscellaneous Provisions) Act 1946, s 6(4), which created a charge upon certain insurance monies and authorised recovery against the insurer "[p]rovided that ... no such action shall be commenced in any court except with the leave of that court". This Court held, at 408, that "a failure to obtain the leave of the Court in advance invalidates the action and renders it incapable of being revived by leave retrospectively given". In coming to that conclusion, Glass JA focused on the language of the provision. In doing so, his Honour noted the trend in New South Wales authorities that had rejected the mandatory/directory distinction as providing the proper approach to construction of such provision.

Toohey J stated that to the extent that National Mutual Fire Insurance was inconsistent with the view he expressed as to the proper construction of s 459P(2), it should not be followed. However, his Honour considered that the case was distinguishable, given the different terms of the legislation. Toohey J accepted that, at least arguably, the court's jurisdiction under s 6(4) was dependent upon advance leave. His Honour considered that was not the case in respect of an application for winding up under s 459A, brought by an entity that required leave under s 459P(2).

In Emanuele, the appellant had submitted that a person who makes an application other than as allowed by s 459P had no standing: see Torsir Pty Ltd v MaxgrowDevelopments Pty Ltd (1995) 121 FLR 170 at 174; 18 ACSR 201 at 205; and see the use of the word "only" in s 459P(2); and "cannot" in s 459P(5). See also David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; 184 CLR 265 at 277. Toohey J rejected this argument. David Grant was concerned with the Corporations Law, s 459G which was a provision that went to jurisdiction. Toohey J concluded that the line of authority he had discussed at 131, including Re Testro Bros, was more closely analogous to s 459D than David Grant. His Honour held, therefore, that s 459P(2) did not impose a condition precedent to the exercise of the jurisdiction of the court. In this regard, Toohey J endorsed the comment of Lindgren J in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 406; 133 ALR 206 at 225 where his Honour stated:

"... the distinction is between a situation in which there is a time limit within which the court must be approached if an application for an order of a particular kind is to be made at all (s 459G), and a situation in which a proceeding is already under way and is subject to the court's control and in which a timely but deficient order has been made."

Toohey J noted that s 459P(3) required the Court to exercise a supervisory role, satisfying itself that there was a prima facie case that the company was insolvent before granting leave. His Honour stated, at 279, that this aided the "drastic commercial consequences which may follow the issue of process for winding up". His Honour also considered there were policy considerations which favoured the taking of a liberal view of the requirements of s 459P, especially in situations such as an application for an urgent ex parte order where, as his Honour observed, it would be inconvenient if leave had to be granted before the application was made.

Gaudron J, at 136, observed that s 459P served a "dual function". The section identified the entities who were entitled to make an application to wind up a company in insolvency and also conferred power on a court to grant leave to make such an application. Her Honour added:

"In its broader context, s 459P is one of several provisions concerned to establish the grounds on which and the procedures by which the Court may order that a company be wound up."

Her Honour was of the opinion that when considered in the context of the legislation as a whole, it was apparent that s 459P was not confined to the grant of leave prior to a winding up application being made. Of importance to her Honour's view were ss 467 and 467A(a). Section 467A(a) provided that a winding up application must not be dismissed because of "a defect or irregularity in connection with the application", unless the court was satisfied that it would result in substantial or irremediable injustice. Section 467(3)(b) provided that the court may "dispense with any notices being given or steps being taken that are required by [the] Law, or by the rules, or by any prior order of the Court".

Her Honour noted that the language of s 459P was emphatic but did not, in terms, provide that the court may only grant leave prior to an application being made for the winding up. Her Honour continued, at 136-137:

"Once the question in this case is approached in terms of the Court's power to grant leave, rather than in terms which ask whether s 459P must be complied with strictly, it is clear, in my view, that s 459P(2) cannot be confined to the grant of leave prior to an application being made for the winding up of a company. As already indicated, s 459P(2) is a provision conferring power on a court. As such, it is not to be construed as subject to implications or limitations unless clearly required by its terms, its context or its subject-matter. Similar considerations dictate that such provisions should not be construed as directing an inflexible approach unless that is clearly indicated. Courts are possessed of powers to be exercised in the interests of justice. And as a general rule, the interests of justice are not well served by the exercise of powers inflexibly and without regard to the convenience of the situation." (reference omitted)

Kirby J, at 146, summarised the approach to the construction of a statutory provision that required the leave of the court for the purposes of particular proceedings. His Honour stated that the fundamental task of the court was to give effect to the purpose of Parliament as expressed in the statutory provision. As his Honour stated, the court's "fidelity is always to the legislative text, properly understood": see, inter alia, Spautz v Kirby at 30.

His Honour next observed that the court will seek to ascertain the purpose to which the provision under consideration was directed. In this regard, his Honour noted that the court will seek a construction that avoids an inconvenient outcome such that the legislation would miss its apparent target and fail to achieve its obvious objectives. However, the court may only do so to the extent the language of the enactment permits: see Bropho v Western Australia [1990] HCA 24; 171 CLR 1 at 20, approving Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421-424. His Honour commented that in more recent times, the courts have shown a preference for a more flexible approach to statutory preconditions where these are of a procedural nature: see Woods v Bate at 567.

His Honour recognised that a review of the authorities in relation to statutory preconditions produced two lines of authority. There was that line of authority in which the condition was construed strictly: see, for example, National Mutual Fire Insurance. The alternative line of authority was represented by Re Testro Bros Consolidated and Re Sydney Formworks.

I have referred in some detail to the factors that the plurality in Project Blue Sky considered relevant to the construction of the provision in question to highlight not only the principles of statutory construction that apply, but also to demonstrate their manner of application in a particular case. Both the language of s 23 and its purpose fundamentally differ from that considered in Project Blue Sky.

Section 23 is also different from the purpose to which the Corporations Law, s 459P, considered in Emanuele, was directed. The essential purpose of s 459P was to prescribe who was entitled to bring an application and then to require that such entity only be permitted to bring an application with leave. As Gaudron J pointed out, it was directed, inter alia, to the procedures for bringing an application to wind up for insolvency.

Section 23, however, regulates what may be done in a particular circumstance, in that it proscribes the bringing of further defamation proceedings against the same defendant, "except with the leave of the court". The requirement of leave is directly related to the bringing of proceedings. In my opinion, that is a proscription on the bringing of proceedings, rather than a regulation of the manner in which the proceedings may be brought. Importantly, there are no equivalent provisions in the Defamation Act to the Corporations Law, ss 467 and 467(a), which was influential in the reasoning of Gaudron J in Emanuele.

I am also of the opinion that the text of s 23 and, in particular, the words "except with the leave of the court in which the further proceedings are to be brought" (emphasis added), requires that leave be obtained before the commencement of the further proceedings.

When the question of purpose is considered, I am content to adopt Hunt J's identification of "purpose" in Spautz v Kirby, which I consider to be correct. Section 23, as was its predecessor provision, is directed to the prevention of abuse of process. As his Honour observed, if leave could be given retrospectively under a provision of s 23, the abuse would already have occurred. If retrospective leave was permitted by the section, the fact that a court may refuse leave is neither an answer to nor a panacea for the abuse that will have occurred already by the bringing of proceedings without leave.

Indeed, the argument, that a court may refuse leave notwithstanding that proceedings have already been commenced and even after they have been substantially heard, itself raises a question as to what factors a court might take into account in determining whether to grant leave. As I am in the minority on the question of construction and as there was no argument on this question, it is not appropriate to express an opinion. It is preferable to leave the matter for consideration when the question directly arises in a particular case.

Her Honour was correct in her construction of s 23. Accordingly, the appellant's challenge to her Honour's refusal to make an order under s 23 nunc pro tunc must be rejected.

The limitation issue

The Limitation Act, s 14B, provides:

"14BDefamation

An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of."

As the appellant did not commence proceedings within 12 months of the date of publication, he required an order extending the limitation period so as to be entitled to bring a claim in this State. The Limitation Act, s 56A, provides:

"56AExtension 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)."

In the argument before her Honour, the appellant advanced two reasons why it was not reasonable in the circumstances for him to have commenced his claim within the one year limitation period. He submitted first, that throughout that period he was bound either by orders of the Federal Court or by undertakings given by him to that Court which confined his personal expenditure to $4,000 per week; and secondly, that he had engaged procedures for handling complaints offered by the ABC.

Only the issue relating to access to funds is relevant on the appeal.

The appellant gave evidence that on 30 March 2006, the Federal Court made orders restraining his use of funds to $4,000 per week for ordinary operating and living expenses and up to $20,000 towards the proceedings in which the orders were made: see Australian Securities and Investment Commission, in the matter of Richstar Enterprises Pty Ltd v Carey [2006] FCA 366. Those orders were extended, amended and varied on several occasions, but were in the form to which I have just referred at the time the appellant made the application in these proceedings.

The trial judge accepted, at [51], that although the appellant was "committed to a lifestyle that reasonably absorbed over $4,000 a week", an obvious step for him to have taken was to have approached the Receiver and, failing agreement from the Receiver, to have made application to the court to have the orders varied so as to release sufficient funds to enable him to retain a solicitor to act for him in respect of the defamation proceedings.

Her Honour, at [45], construed s 56A as imposing an onus on a plaintiff to satisfy the court that it was not reasonable in the circumstances for him or her to bring proceedings within the limitation period. Her Honour considered that s 56A did not involve the consideration of any prejudice to a defendant. Her Honour also held that s 56A did not confer a discretion. Rather, if the court was satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced the action within one year, the court was required to extend the period of time in which to bring proceedings: see Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676. The same construction has been given to equivalent provisions in other jurisdictions: see Murphy v Lewis [2009] QDC 37 at [11]-[14]; Noonan v MacLennan [2010] QCA 50; 2 QdR 537 at [15]-[18] per Keane JA; at [30] per Holmes JA and at [48] and [58] per Chesterman JA; Rayney v State of Western Australia (No 3) [2010] WASC 83 at [41] per Martin CJ. I agree with this construction of s 56A. The statutory test does not direct attention to whether it was reasonable not to have commenced proceedings. It requires the court to be satisfied it was not reasonable to have commenced an action within one year from the date of publication of the defamatory matter. This view is consistent with the preferred view given to the section in Noonan v MacLennan.

Her Honour rejected an argument advanced by the appellant that the test under s 56A was wholly objective and did not permit consideration of the plaintiff's motivations or thought processes during the one year period. In support of this submission, the appellant had relied upon the statement of Keane JA in Noonan v MacLennan, at [20], that:

"The test posed by s 32A(2) is an objective one. When s 32A(2) refers to 'the circumstances', it means the circumstances as they appear objectively to the court and not 'the circumstances which the plaintiff believed, however unreasonably, to exist'."

Her Honour, at [48], did not accept that this passage supported the appellant's argument. Rather, her Honour considered that the phrase in s 56A: "not reasonable in the circumstances", invited inquiry into the plaintiff's reasons for not commencing proceedings within the limitation period. Her Honour accepted that to describe the test as objective meant that a person could not bring themselves "within the test by proving only a subjective belief that it was not reasonable to bring the proceedings". I consider that this is the correct approach to s 56A.

The appellant also gave evidence that he had approached the Receiver in respect of "a small number of choses in action". The appellant said that, without exception, the Receiver refused to agree to any funding of legal action and that the Receiver "was 100% against that proposition". The appellant also said he had sought the consent of the Receiver to obtain funds in relation to legal advice in respect of the present proceedings. The appellant said the Receiver had said "100% 'no' ". It appears from the evidence that this request had been made orally and had not been the subject of any more formal communication. The appellant did not make an application to the court for the release of funds for this purpose, notwithstanding that in the period 7 April 2006 to 26 March 2008, he made 18 applications to the court, either for further funding, or for an extension of existing orders.

Her Honour, at [53], also rejected the appellant's contention that in making a determination under s 56A, it was only relevant for the court to consider the circumstances that in fact existed. Her Honour stated that it was difficult to be satisfied that it was not reasonable in the circumstances for the appellant to have commenced an action within the relevant time when there appeared to have been a real possibility of gaining access to funds sufficient for him to do so. In coming to that conclusion, her Honour stated that it was "not a question of drawing any inference adverse to [the appellant]" of the kind explained in Commercial Union Assurance Co v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418. Rather, her Honour considered the evidence was insufficient for her to reach the required satisfaction. As her Honour explained, at [53]:

"It is simply a question of the incompleteness of the evidence relied upon in support of the contention that [the appellant] had no access to funds."

The appellant contended that her Honour erred in construing the phrase "in the circumstances" in s 56A as embracing steps that a plaintiff could reasonably have taken but did not. He contended that on its proper construction, the word "circumstances" did not permit the court postulating what action an appellant could have taken so as to be in a position to bring an action within the 12 month period. Rather, the court was confined in its consideration to those circumstances which in fact existed. In the present case, the appellant's circumstances were that he did not have the funds to commence the action.

In my opinion, her Honour correctly construed s 56A and correctly applied it to the facts of this case. The section requires the court to be satisfied it was not reasonable "in the circumstances" to commence proceedings within one year of the date of the defamatory publication. That question involves an evaluative process, the outcome of which will depend upon the facts of a particular case. Thus, a court might, and probably would, accept that it was not unreasonable to not bring an action within the 12 month period if the person was unaware there had been a defamatory publication. A more contestable circumstance might be where a plaintiff established a lack of funds to be able to do so. However, in the present case, her Honour was not satisfied that the appellant did not have funds that could be made available to him to commence an action within the one year period. In other words, the appellant had failed to satisfy the onus cast upon him by s 56A(2).

It follows that, in my view, the challenge to her Honour's refusal to extend the limitation period also fails.

The orders I propose are:

1.Appeal dismissed;

2.The appellant is to pay the respondent's costs.

McCOLL JA: I have read Beazley JA's reasons in draft. I agree with the orders her Honour proposes. Her Honour's reasons set out the facts and legislation under consideration.

Section 23 of the Defamation Act 2005

I cannot, with respect, agree that leave to proceed cannot be given nunc pro tunc under s 23 of the Defamation Act 2005.

Section 23 substantially reproduces s 9(3) of the Defamation Act 1974 (the "1974 Act").

The Report on Defamation (New South Wales Law Reform Commission, Report 11) (the "LRC Report") drafted, and recommended the adoption of, the 1974 Act. Section 9(3) was based on its recommendations. The Court may consider the LRC Report to determine the meaning of that provision if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable: s 34(1)(b), Interpretation Act 1987. I would so regard a construction of the words in s 23 "the person cannot bring further defamation proceedings for damages against the same defendant ... except with the leave of the court in which the further proceedings are to be brought" in their ordinary meaning, as the respondent contends, as meaning a plaintiff may not validly bring the proceedings without leave and obtain leave subsequently if and when objection is taken.

I accept that Hunt J reached that conclusion in reasons not necessary for his decision in Spautz v Kirby (1989) 21 NSWLR 27 (at 30). His Honour did not have regard to the LRC Report.

With regards to the commencement of proceedings in relation to the same defamatory matter, the LRC Report stated:

"52. We think that a person defamed should not have an uncontrolled liberty to sue a defendant whom he has already sued in respect of the same report, article, speech or other matter ... We do not, however, think that second action should automatically be barred: the first action might have been for what was a very limited dissemination and the second for a general dissemination to the public, perhaps not occurring until after the first action was brought. We propose that a second action should not be brought except by leave of the court.

53. We think that the restriction proposed in paragraph 52 should have effect whether the first action was brought in New South Wales or elsewhere ... If an action is brought in another State ... we do not think that the same plaintiff should have an uncontrolled liberty to sue the same defendant in respect of the publication ..." (Emphasis added)

According to the LRC Report, the purpose of s 9(3) of the 1974 Act was to remedy the "defects of the [Defamation Act 1958], arising because of the multiplicity of causes of action which may attend the dissemination of defamatory matter". It then cited the defects which include "problems of the extent to which more than one action can be brought against the same defendant in respect of the same report, article, speech or other matter ...". The Second Reading Speech to the Defamation Bill 1974 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 27 February 1974) did not address s 9(3).

The power of courts to extend time nunc pro tunc is based on the court's inherent jurisdiction to remedy a situation by dating an order in a way which gives effect to the justice of the case: Hartley Poynton Ltd v Ali [2005] VSCA 53; (2005) 11 VR 568 per Ormiston JA (Buchanan and Eames JJA agreeing). Such orders, as his Honour's careful analysis demonstrated, have not been granted to alter the substantive rights of parties but only to overcome procedural irregularities and difficulties.

In Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114 the High Court by majority (Dawson, Toohey and Kirby JJ; Brennan CJ and Gaudron J dissenting) dismissed an appeal from the Full Court of the Federal Court which granted leave nunc pro tunc for the bringing of an application for an order that a company be wound up in insolvency pursuant to s 459P(1) of the Corporations Law.

Toohey J (with whom Dawson J agreed with the addition of some short comments) relied on a number of factors to conclude that that leave was capable of being granted retrospectively.

The first was whether s 459P(1) was procedural or jurisdictional. His Honour concluded that it was not jurisdictional having regard to s 2(3) of the Corporations (South Australia) Act 1990 (SA) which specifically conferred jurisdiction on the Federal Court for matters arising under the Corporations Law and the fact that it was s 459A, and not s 459P of the Corporations Law, that gave the court power to order the winding up of a company in insolvency.

Toohey J then considered the purpose of s 459P and quoted (at 128 - 129) a passage from Sholl J's judgment in Re Testro Bros Consolidated Ltd [1965] VR 18, in which his Honour said (at 47):

"Such legislation is aimed at preserving the control of the Supreme Court over the administration of a company's affairs, a purpose which is sufficiently achieved by interpreting sections like s 199 rather as conferring a control of a directory character on the Court, than as setting up an absolute bar like the statute of limitations."

Toohey J (at 129) adopted Sholl J's statement as the approach to be taken to s 459P. His Honour said that National Mutual Fire Insurance Co Ltd v The Commonwealth [1981] 1 NSWLR 400 should not be followed to the extent that it took a different view. Hunt J applied National Mutual Fire Insurance Co Ltd v The Commonwealth in Spautz v Kirby (at 30), albeit, I accept, only as guidance on the approach to be taken by determining the meaning of provisions such as s 9(3) in their particular context.

Finally, Toohey J noted (at 131) that "[t]here are policy considerations which favour taking a liberal view of the requirements of s 459P, especially in situations such as an application for an urgent ex parte order to appoint a provisional liquidator, where it would be inconvenient if leave had to be granted before the application was made."

Dawson J (at 125) also added:

"Section 459P does not confer jurisdiction on the Federal Court to make a winding up order; it does no more than identify the parties who may make an application ... Since the failure to obtain leave was procedural and did not go to jurisdiction, there was no reason by the Full Court of the Federal Court should not have cured the defect or irregularity by granting leave nunc pro tunc."

Kirby J recognised (at 155) that the language of s 459P "looked more emphatic than a number of the predecessors referred to in the cases just cited" [in which it had nevertheless been held that leave could be granted nunc pro tunc] but that "the differences should not be taken at face value". His Honour referred to the report by the Law Reform Commission recommending Pt 5.4 of the Corporations Law, which stated that the intention was that the process of winding up insolvent companies should be made quicker and more efficient and concluded that "[i]t would not promote these objectives if s 459P(2) were construed as strictly as the appellants submit".

In Kirby J's view (at 156 - 157), the structure of Pt 5.4 of the Corporations Law made it clear that s 459P was "dealing with ... a procedure to be followed in making the application" and that "[t]he requirement of the Court's leave [was] there for the superintendence of the proceedings by the Court". If justice required the Court could "exceptionally" grant leave by a nunc pro tunc order, that "power to so order ... not [being] excluded by the express provisions of the Law".

Brennan CJ, dissenting, held (at 122):

"The requirement of leave cannot be regarded, in my respectful opinion, as being merely procedural. It is not imposed as a regime for the conduct of proceedings property pending in the Court. It is imposed to prevent the taking of a step that would commence proceedings in circumstances where the company is entitled, before the commencing step is taken, to protection by the Court's examination of the case to be presented in proof of the company's insolvency. If the requirements of s 459P(2) are to be treated as merely procedural, the purpose of s 459P(3) and (5) is frustrated." (Emphasis added)

Although dissenting on whether the appeal should be dismissed, Gaudron J's judgment adopted a similar line of reasoning to that of the three judges in the majority in relation to the factors that should be considered when determining whether leave pursuant to a particular provision can be granted retrospectively.

Gaudron J (at 135) thought that resort to the jurisdictional or procedural dichotomy "... tends to oversimplify the issue involved in this case [a]nd it also tends to divert from the task of ascertaining the meaning and effect of s 459P". Her Honour held (at 136 - 137) that as s 459P(2) conferred power on a court, it was "not to be construed as subject to implications or limitations unless clearly required by its terms, its context or its subject matter" and "should not be construed as directing an inflexible approach unless ... clearly indicated". She added (at 137):

"Courts are possessed of powers to be exercised in the interests of justice. And as a general rule, the interests of justice are not well served by the exercise of powers inflexibly and without regard to the convenience of the situation."

However, her Honour concluded (at 138 - 139) that the questions to be asked on the exercise of the discretion conferred by s 459P(2), (3) and (4) could not be asked once a winding up order has been made. Accordingly "[t]o allow that s 459P(2), (3) and (4) may be satisfied by answering a hypothetical question [was] to reduce the grant of leave to a mere formality [and] it is to negate the nature of the independent judicial discretion which the sub-sections confer". She held that although leave to make a winding up application could be granted at any point prior to, or simultaneously with, the making of a winding up order, it could not be granted thereafter.

Emanuele v Australian Securities Commission has been applied in further cases dealing with corporations: see Masri Apartments Pty Ltd (in liq) v Perpetual Nominees Ltd [2004] NSWCA 471; (2004) 214 ALR 338, South Johnstone Mill Ltd v Dennis [2007] FCA 1448, (1997) 163 FCR 343. It has also been applied with regards to the failure to comply with pre-action procedures under motor vehicle legislation in Racic v Haltiner [2010] ACTSC 63; (2010) 4 ACTLR 224 and Bermingham v Priest [2002] QSC 57; (2002) 35 MVR 547. It was applied in Grunseth v Resource Planning and Development Commission [2007] TASSC 92; (2007) 17 Tas R 55 in the context of environmental planning.

Emanuele v Australian Securities Commission was considered in MAC v R [2012] VSCA 19 which concerned s 371 of the Criminal Procedure Act 2009 (Vic). Section 371 provided that the court may extend the time for holding a special hearing.

Nettle JA (with whom Bongiorno JA agreed) held (at [20]) that the form and substance of s 371 was procedural, that the section did not confer jurisdiction to conduct a special hearing and was concerned only with matters of procedure for the exercise of jurisdiction which was conferred by s 370. His Honour (at [21]) regarded "the evident purpose of s 371(2) [as] extend[ing] to the correction of errors and slips, in exceptional circumstances, where it is in the interests of justice to do so" - a conclusion based on the express language of s 371. His Honour also (at [23]) applied Gaudron J's reasons in Emanuele v Australian Securities Commission, that "where a statutory provision like s 371(2) does not expressly provide that time can only be extended before a hearing is held, it is not to be construed as subject to such implications or limitations unless clearly required by the terms of the provision, the context or the subject matter". Further (at [29]) in his Honour's view, "the apparent aim of the legislation, of preserving the control of the court over the time in which a hearing may be held, is sufficiently achieved by interpreting ... s 371(2) as conferring a control of a directory character on the court, as opposed to setting up an absolute bar like a statute of limitations".

Kaye J considered the purpose of s 23 of the Defamation Act in Buckley v The Herald & Weekly Times Pty Ltd (No 2) [2008] VSC 475 (at [14]) as follows (footnotes omitted):

"The construction of s 23, and the approach to the question which I must decide, is assisted by reference to the underlying purpose served by s 23. As counsel for both parties have pointed out, the obvious purpose of s 23 is to protect a defendant from being exposed to a multiplicity of proceedings arising out of identical, or substantially similar, publications. In the field of defamation law, the same or similar subject matter may become the subject of a number of different and separate causes of action which, theoretically, may each form the basis of separate proceedings. This consideration was highlighted by the New South Wales Law Reform Commission in its Report on Defamation dated 20 April 1971. As the Commission pointed out in that report, each publication of the same book, leaflet or newspaper gives rise to a multitude of causes of action, each time such a document is distributed to a separate recipient. Further, the same publication may give rise to two or more separate causes of action, where the publication is the basis of both false and true innuendos. It was those considerations which caused the Law Reform Commission to propose, as a solution, that a person should not have an uncontrolled liberty to sue a defendant, whom he has already sued, in respect of the same report, article, speech or other matter. The Commission proposed that a second action, in respect of the same report or document, should not be brought except by leave to the Court. That proposal was adopted in s 9(3) of the Defamation Act 1974 (New South Wales). That provision is in identical terms to s 23 of the New South Wales Defamation Act 2005 (New South Wales), which, in turn, is identical to s 23 of the Victorian Act."

Kaye J also observed (at [26]) that in Lee v Kim [2006] NSWCA 384; (2006) 68 NSWLR 433 (at [33]), Handley JA (with whom Beazley and Santow JJA agreed) referred to Spautz v Kirby and stated that "Emanuele v Australian Securities Commission might require [that] decision to be reviewed". I note that the parties did not draw Handley JA's observations to this Court's attention.

I would add to the line of Emanuele v Australian Securities Commission jurisprudence the observations of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 in which they said (at 516): "A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid."

Section 23 does not confer jurisdiction on the court to hear defamation proceedings. A person's cause of action for defamation is determined in accordance with s 8 of the 2005 Act as being "a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter." However, the problem of a multiplicity of proceedings is still a real one, as Kaye J accepted, as long as Australia does not adopt the single publication rule developed in the United States: see Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575.

In my view s 23 is a procedural provision. I would not infer, despite its language of futurity that the legislature intended, that leave under that provision could only be granted prior to the commencement of "further defamation proceedings". Such a limitation is not "clearly required" by the terms s 23, the context or the subject matter: Project Blue Sky (at 381 - 382). Indeed, in my view, to read that limitation into the words of s 23 would lead to an unreasonable result. It was not the intention of the LRC Report that s 9(3), the predecessor of s 23, should be so read. That Report assists in concluding that the legislature did not intend that an act done in breach of s 23 should be invalid.

There is much force, in my view, to Smart AJ's consideration of s 9(3) in Macquarie Bank Ltd v Berg [2002] NSWSC 254. His Honour considered Spautz v Kirby, albeit in reasons not necessary for his conclusions, and said (at [26]):

"I have some reservations as to the correctness of the decision of Hunt J when regard is had to the other classes of important litigation where leave is granted nunc pro tunc ... A grant of leave nunc pro tunc would not defeat the object of s 9(3) as the Court would only grant leave in a proper case, for example, where the material appears to be defamatory and there was an explanation such as ignorance of s 9(3) for not seeking leave."

I would uphold the first ground of appeal.

Section 56A, Limitation Act 1969

I agree with Beazley JA's reasons for concluding that the primary judge did not err in refusing to make an order extending the limitation period for the appellant's cause of action for defamation: Limitation Act 1969, s 56A. In my view it is also relevant to take into consideration in this respect that the appellant did, within the one year limitation period prescribed by s 15 of the Limitation Act 2005 (WA) commence proceedings in respect of these publications in the Supreme Court of Western Australia by the filing of a writ of summons against the respondent on 8 May 2007. It is difficult in those circumstances to see how he could demonstrate that it was "not reasonable in the circumstances" for him to have done the same in New South Wales.

SACKVILLE AJA: I have had the advantage of reading the judgment of Beazley JA in draft. As her Honour explains (at [8]), the appeal presents two issues. The first is whether the primary Judge erred in determining that a court cannot retrospectively grant leave to a plaintiff pursuant to s 23 of the Defamation Act 2005 ("2005 Act") to bring further defamation proceedings, where the plaintiff has already brought proceedings in respect of the same matter. The second is whether the primary Judge erred in refusing to extend, pursuant to s 56A of the Limitation Act 1969 ("Limitation Act"), the one year limitation period imposed by s 14B of the Limitation Act.

In my view, s 23 of the 2005 Act, on its proper construction, does not prevent a court granting leave nunc pro tunc (retrospectively) to a plaintiff to commence defamation proceedings in New South Wales, notwithstanding that he or she has already brought defamation proceedings for defamation in relation to the publication of the same matter. The primary Judge in the present case would have granted leave to the plaintiff under s 23 had she considered that she had power to do so. Accordingly, the proceedings should not have been dismissed on the ground that the appellant had not obtained leave from the court before instituting proceedings against the respondent.

However, I agree with Beazley JA, for the reasons that her Honour gives, that no error has been shown in the primary Judge's decision not to extend the limitation period pursuant to s 56A of the Limitation Act. Accordingly, I agree that the appeal should be dismissed.

Because in my opinion the appellant succeeds on one of the two discrete issues argued on appeal, I would order the appellant to pay only 50 per cent of the respondent's costs of the appeal.

Construction of s 23 of the 2005 Act

Statutory provisions requiring a plaintiff to obtain leave to bring proceedings or to make an application to the court often present difficult questions of construction. An example is Emanuele v Australian Securities Commission [1997] HCA 20;188 CLR 114, where the High Court was narrowly divided on the question of whether a failure by the Commission to obtain leave under s 459P(2) of the Corporation Law, before applying for an order winding up a company on the ground of insolvency, affected the validity of a winding up order subsequently made by the Court. As Kirby J observed (at 140), strong arguments had been advanced either way as to the construction of s 459P(2). And, as his Honour also noted (at 142), there was conflicting authority upon the construction of similar provisions.

Section 23 of the 2005 Act presents similar difficulties of construction. The section has been set out by Beazley JA (at [12]).

Legislative History

The legislative history of s 23 of the 2005 Act does not provide a definitive answer to the question of construction in the present case. Nonetheless, it is useful to start with that history, including the construction accorded to the predecessor of s 23 in the only two cases that appear to have considered the predecessor.

The predecessor to s 23 of the 2005 Act was s 9(3) of the Defamation Act 1974 ("1974 Act"). Section 9(3) followed precisely the wording proposed by the New South Wales Law Reform Commission ("NSWLRC") in its Report on Defamation (LRC 11, 1971), at 53, and was as follows:

"Where a person has brought proceedings (whether in New South Wales or elsewhere) for defamation against any person in respect of the publication of any matter, that person shall not bring further proceedings for defamation against the same defendant in respect of the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought."

The NSWLRC recommended (at 99) that a person defamed should have a separate cause of action for each defamatory imputation published of that person and for each person to whom the publication was made. It recognised (at 99) that this recommendation would aggravate existing defects in the law "because of the multiplicity of causes of action which may attend the dissemination of defamatory matter". The NSWLRC therefore proposed legislation curtailing the right of a plaintiff to bring proceedings for defamation where the plaintiff had already brought proceedings in respect of the same publication.

The NSWLRC explained (at 100) its proposal as follows:

"52. We think that a person defamed should not have an uncontrolled liberty to sue a defendant whom he has already sued in respect of the same report, article, speech or other matter. The law as to res judicata is not fitted to impose the appropriate restraint, either under the present rules as to causes of action or under the solution which we propose. Thus, if defamatory matter is published in a newspaper, judgment in an action for publication to residents of Sydney would not bar a second action for publication to residents of Newcastle. The second action might be stayed as vexatious, but it is perhaps a strong use of that power to stay proceedings on an undoubted cause of action which has not been litigated. We do not, however, think that second action should automatically be barred: the first action might have been for what was a very limited dissemination and the second for a general dissemination to the public, perhaps not occurring until after the first action was brought. We propose that a second action should not be brought except by leave of the court.

53. We think that the restriction proposed in paragraph 52 should have effect whether the first action was brought in New South Wales or elsewhere. Although problems of the conflict of laws have not hitherto been common in defamation cases in Australia ... we have the advantage of seeing the American experience .... If an action is brought in another State or in a Territory of the Commonwealth for defamation in a journal circulating widely in Australia, we do not think that the same plaintiff should have an uncontrolled liberty to sue the same defendant in respect of the publication of the same journal in New South Wales. We have chosen an Australian example because the possibility is readily seen in local terms, but there is no reason why the same considerations should not apply where the first action is brought in a place more distant from New South Wales."

In Spautz v Kirby (1984) 21 NSWLR 27, the construction of s 9(3) of the 1974 Act came before a court apparently for the first time (see at 29-30). In that case, the plaintiff commenced defamation proceedings without leave, having previously instituted criminal defamation proceedings in respect of publication of the same matter. Hunt J ultimately held (at 32) that s 9(3) did not apply where the earlier proceedings involved a prosecution for criminal defamation, a holding affirmed by the Court of Appeal: Kirby v Spautz (1990) 21 NSWLR 34.

As a preliminary matter, however, Hunt J considered whether a court could grant leave retrospectively under s 9(3), assuming the case was one in which leave was required. His Honour held that s 9(3) did not permit leave to be granted retrospectively, for these reasons (at 30):

"attention must be concentrated upon the terms of the statute in question; the question is whether the legislature intended that a failure to comply with the stipulated requirement invalidates the act done; the only true guide to that intention is to be found in the language of the relevant provision and the scope and object of the whole statute; and the intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement.

The terms of s 9(3) are unequivocal in relation to this particular requirement. Either the "further proceedings" are brought with leave or they are not. Without such leave, the plaintiff "shall not bring further proceedings". That clearly enough means that he is not to commence such further proceedings until he has obtained leave. The requirement that leave be obtained is on its face intended to prevent an abuse of process when separate and successive proceedings are brought against the same defendant in respect of the same matter (as defined). There is nothing in the statute which warrants an interpretation of s 9(3) that the plaintiff may validly bring the proceedings without leave provided that leave is obtained subsequently if and when objection is taken to them. The abuse has already happened by that stage. In my view, the legislative intention properly to be garnered from the terms of s 9(3) and from its place in the framework of the statute as a whole is that a failure to obtain the leave of the court in advance invalidates the action and renders it incapable of being revived by leave retrospectively given."

The NSWLRC revisited the law of defamation in a 1995 report: Defamation (Report 75, 1995). But the Report did not consider s 9(3) of the 1974 Act and did not refer to the analysis in Spautz v Kirby.

In Macquarie Bank Ltd v Berg [2002] NSWSC 254, Smart AJ expressed doubts as to the correctness of Hunt J's construction of s 9(3) of the 1974 Act in Spautz v Kirby. While Smart AJ did not have to resolve the question of construction, he thought (at [26]) that a:

"grant of leave nunc pro tunc would not defeat the object of s 9(3) as the Court would only grant leave in a proper case, for example, where the material appeared to be defamatory and there was an explanation such as ignorance of s 9(3) for not granting leave."

The 2005 Act repealed the 1974 Act: see s 46. Section 23 of the 2005 Act substantially re-enacted s 9(3) of the 1974 Act, with only minor changes in wording.

Reasoning

The respondent submitted that the primary Judge was correct to hold that s 23 of the 2005 Act evinces an intention to address the vice of multiple claims in defamation, by placing an onus on a plaintiff who has already instituted proceedings to persuade the court that further proceedings would not be an abuse of process. Mr Tobin QC, who appeared with Mr Dawson for the respondent, pointed out that s 23 proscribed certain conduct where a particular past state of affairs exists. It does so by prohibiting a person from bringing further defamation proceedings if that person has already brought defamation proceedings in respect of the same matter. The section then makes the proscription subject to a proviso, namely that the plaintiff must obtain leave of the court in which further proceedings are to be brought.

Mr Tobin submitted that the plain language of s 23 supports the conclusion that a plaintiff who requires leave but fails to obtain it before commencing defamation proceedings, cannot subsequently seek leave. This conclusion reflected, so Mr Tobin submitted, the legislative context. In particular, s 8 of the 2005 Act (which creates a single cause of action in relation to multiple defamatory imputations carried by the same matters) and s 11 (which provides for a singe substantive law to be applicable to any cause of action for publication of matters in more than one jurisdiction) demonstrate that there should be a single cause of action in respect of publication of the same matter.

These arguments have considerable force. The principal consideration in construing s 23 must be the statutory text. Mr Tobin is correct to submit that the section takes the form of a prohibition on a plaintiff bringing further defamation proceedings, unless leave is obtained from the court in which the further proceedings are to be brought. This language contemplates that the application for leave to bring the proceedings will be brought before the proceedings are commenced. Moreover, if anything, the form of the prohibition in s 23 ("cannot bring further proceedings" without leave) is more definite than the direction in s 9(3) of the 1974 Act ("shall not bring further proceedings" without leave).

However, the fact that the statutory language contemplates that a leave application will be brought before the proceedings are instituted does not necessarily mean that the section should be construed as preventing a court granting leave retrospectively, regardless of the circumstances. There are several factors suggesting that s 23 should not be construed in this way.

First, despite the comment of Hunt J in Spautz v Kirby that the language of s 9(3) of the 1974 Act was "unequivocal", I do not think that s 23 of the 2005 Act is free from ambiguity. It is clearly possible for legislation to prohibit the commencement of proceedings without the leave of the court, yet for the court to retain the power to grant leave nunc pro tunc (that is, now instead of then: see the explanation by Toohey J of the origin of nunc pro tunc orders in Emanuele, at 131-132). An example is Emanuele itself, where the legislation (s 459P(2) of the Corporations Law) provided that an application by the Commission for a company to be wound up in insolvency could "be made only with the leave of the court". The majority of the High Court did not consider this language to be inconsistent with the court retaining power to grant leave nunc pro tunc at a later stage in the proceedings.

Mr Tobin submitted that the actual decision in Emanuele had no "analogical value" in the present case. He pointed out that s 459P(2) of the Corporations Law did not expressly state that leave was to be obtained in advance of the litigation. He also pointed out that the leave requirement in s 459P(2) was not principally designed to deal with abuse of process and that the policy considerations were therefore different. In Emanuele, there was a public interest in insolvent companies being wound up, rather than being permitted to trade: see at 157, per Kirby J; at 131, per Toohey J (with whom Dawson J agreed).

The statutory language under consideration in Emanuele imposed a prohibition on the Commission making an application to the court to wind up a company in insolvency without the leave of the court. Section 459P(2) provided that the Commission could only make such an application with the leave of the Court. This was reinforced by s 459P(5), which provided that:

"Except as provided in this section, a person cannot apply for a company to be wound up in insolvency". (Emphasis added.)

Despite the emphatic statutory language, the majority of the High Court held that s 459P(2) and (5) did not preclude a court granting leave to the Commission nunc pro tunc, even after the winding up order had been made. (The order granting leave in Emanuele was made by the Full Federal Court on appeal from the winding up order: see CLR, at 115.)

I accept that the decision in Emanuele does not control the construction of s 23 of the 2005 Act: cf Lee v Kim [2006] NSWCA; 68 NSWLR 433, at 438-439 [33], per Handley JA (with whom Beazley and Santow JJA agreed). Nonetheless, the reasoning in Emanuele supports the appellant's contention that s 23 does not preclude the grant by a court of leave nunc pro tunc to bring the further defamation proceedings.

In Emanuele, Toohey J (with whom Dawson J agreed) distinguished between provisions that grant jurisdiction or create a cause of action and those which do not. Toohey J observed (at 128) that s 459P(2) of the Corporations Law was not a "jurisdiction conferring provision" and did not create a cause of action. It was a separate provision in the Corporations Law that conferred jurisdiction on the court to order an insolvent company to be wound up. Thus the leave requirement did "not impose a condition precedent to the exercise of jurisdiction of the court" (at 131). A similar view was taken by the third member of the majority, Kirby J, when distinguishing (at 156-157) the decision in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265. See also Tasker v Fulwood [1978] 1 NSWLR 20, at 24, per curiam (a case cited with approval in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, at 390 [93], per McHugh, Gummow, Kirby and Hayne JJ).

Section 6(1) of the 2005 Act states that the Act "relates to the tort of defamation at general law". Section 6(2) provides that the 2008 Act "does not affect the operation of the general law in relation to the tort of defamation", except to the extent that it provides otherwise. The source of the jurisdiction of the Supreme Court to hear and determine an action in defamation is therefore not the 2005 Act: cf Supreme Court Act 1970, s 23. As with s 459P(2) of the Corporations Law, it cannot be said that s 23 of the 2005 Act confers jurisdiction on the Court or creates a cause of action.

The reasoning in Emanuele suggests that a statutory prohibition on making an application or bringing proceedings, even if expressed in emphatic language, will not necessarily preclude the Court from exercising its power to grant leave nunc pro tunc. It is true that s 459P(2) and (5) of the Corporations Law did not expressly require a leave application to be brought before the making of an application, but the language clearly enough implied that that was the position.

Secondly, I think some care should be taken about drawing conclusions from the purpose attributed to s 23 of the 2005 Act. There is no doubt, as the 1971 NSWLRC report shows, that the object was to ensure that a plaintiff in defamation should not have an "uncontrolled liberty to sue a defendant whom he has already sued in respect of the same ... matter" (at [52]). But the NSWLRC made it clear that the second action should not be automatically barred. The report simply did not direct attention to whether it should be open to a court to grant leave nunc pro tunc if leave was not obtained before the proceedings were commenced.

In Spautz v Kirby, Hunt J said that the leave requirement in s 23 is intended to prevent an abuse of process when separate and successive proceedings are brought against the same defendant in respect of the same matter. But as the primary Judge observed in the present case (at [23]), s 23 itself recognises that the separate and successive proceedings will not necessarily constitute an abuse of process. The very point of giving the court power to the plaintiff to bring a second defamation action is to permit the claim to proceed if there are good reasons for doing so, despite the plaintiff having already instituted proceedings in respect of the same matter.

The evil to which s 23 of the 2005 Act is directed to protect a defendant from being exposed to a multiplicity of proceedings for the same damages against the same defendant, without the court determining that there are reasons why the plaintiff should be permitted to do so: cf Buckley v the Herald & Weekly Times Ltd [2008] VSC 475, at [14] per Kaye J. Since s 23 only applies where the same defendant is sued, the defendant will be well aware of the earlier proceedings. If the plaintiff has instituted the second proceedings without leave, the defendant can bring them to an early halt by seeking orders summarily dismissing the proceedings. If this prompts the plaintiff to apply for leave nunc pro tunc, the court will determine whether there is any justification for a second defamation action in respect of the same or substantially similar publications: whatever the outcome of the leave application, the court has ample power to protect the defendant against any wasted costs arising from the plaintiff's failure to obtain leave in advance of instituting the proceedings. The evil against which the section offers protection does not necessarily require that the plaintiff's action fail in limine if leave is sought shortly after proceedings are commenced, rather than before they are commenced.

Thirdly, as Kirby J pointed out in Emanuele (at 147):

"A feature of the administration of justice in more recent times has been a general disfavour towards procedural rigidities and a preference for a somewhat more flexible approach to statutory preconditions where these are of a procedural character".

His Honour quoted the observations of McHugh JA (with whom Hope JA agreed) in Woods v Bate (1986) 7 NSWLR 560, at 567:

"In recent times the courts have shown great reluctance to invalidate an act done pursuant to a statutory provision because of the failure to comply with an antecedent condition .... Speaking generally, I think that, at the present time, the proper approach is to regard a statutory requirement, expressed in positive language, as directory unless the purpose of the provision can only be achieved by invalidating the result of any departure from it, irrespective of the circumstances or resulting injustice...".

The distinction between mandatory and directory provisions is no longer part of the lexicon of the law (Project Blue Sky at 389-391 [92]-[93]), but McHugh J's observations retain their force.

If legislation is clearly intended to preclude a court from granting leave nunc pro tunc to bring proceedings, it must of course be given effect. I do not think that s 23 of the 2005 Act, despite its apparently emphatic language, exhibits such an intention. The position might well have been different if s 23 had qualified a grant of jurisdiction or the creation of a new cause of action. But it does not do so. In my opinion, s 23 should not be construed so as to deny the court power to grant leave nunc pro tunc regardless of the merits of the plaintiff's claim and his or her reasons for not seeking leave from the court before filing the initiating process.

**********

Decision last updated: 18 June 2012

Citations

Carey v Australian Broadcasting Corporation [2012] NSWCA 176

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Statutory Material Cited

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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 test
Legislation 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 1970
Cases 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; (2006) 68 NSWLR 433 MAC v R [2012] VSCA 19 Macquarie Bank Ltd v Berg [2002] NSWSC 254 Masri Apartments Pty Ltd (in liq) v Perpetual Nominees Ltd [2004] NSWCA 471; (2004) 214 ALR 338 Murphy v Lewis [2009] QDC 37 National Mutual Fire Insurance Co Ltd v Commonwealth of Australia [1981] 1 NSWLR 400 Noonan v MacLennan [2010] QCA 50; 2 QdR 537 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Racic v Haltiner [2010] ACTSC 63; (2010) 4 ACTLR 224 Rayney v State of Western Australia (No 3) [2010] WASC 83 Re Sydney Formworks Pty Ltd [1965] NSWR 646 Re Testro Bros Consolidated Ltd [1965] VR 18 South Johnstone Mill Ltd v Dennis [2007] FCA 1448, (1997) 163 FCR 343 Spautz v Kirby (1989) 21 NSWLR 27 Tasker v Fulwood [1978] 1 NSWLR 20 Torsir Pty Ltd v Maxgrow Developments Pty Ltd (1995) 121 FLR 170; 18 ACSR 201 Woods v Bate (1986) 7 NSWLR 560
Texts Cited:	Report on Defamation (New South Wales Law Reform Commission, Report 11) Report on Defamation (New South Wales Law Reform Commission, Report 75) The Second Reading Speech to the Defamation Bill 1974 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 27 February 1974)
Category:	Principal judgment
Parties:	Norman Phillip Carey (Appellant) Australian Broadcasting Corporation (Respondent)
Representation:	Counsel: T Molomby (Appellant) T K Tobin QC; A T S Dawson (Respondent) Solicitors: RBHM Commercial Lawyers (Appellant) ABC Legal Services (Respondent)
File Number(s):	2010/249566
Publication restriction:	No
Decision under appeal	Citation: Carey v ABC [2010] NSWSC 709 Date of Decision: 2010-06-30 00:00:00 Before: McCallum J File Number(s): SC 09/297543