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Carey v Australian Broadcasting Corporation

Carey v Australian Broadcasting Corporation

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Case Copied 30 June 2010 26 min read

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Reported Decision:
77 NSWLR 136

New South Wales

Supreme Court

CITATION: Carey v ABC [2010] NSWSC 709

HEARING DATE(S): 9 & 10 June 2010

JUDGMENT DATE :
30 June 2010

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: 1. The plaintiff’s oral application for leave under s 23 of the Defamation Act 2005 to bring the present proceeding is dismissed.
2. The plaintiff’s notice of motion dated 1 May 2009 is dismissed.
3. The proceedings are dismissed with costs.

CATCHWORDS: DEFAMATION - application under s 23 of the Defamation Act 2005 for leave to bring further proceedings - whether leave may be given retrospectively - DEFAMATION - appliction for extension of time within which to bring proceedings - substantive law applicable - whether "not reasonable in the circumstances" for plaintiff to have commenced an action within the limitation period - where plaintiff had limited access to funds - where complaint made under defendant's internal complaints process

LEGISLATION CITED: Choice of Law (Limitation Period) Act 1993 (NSW)
Defamation Act 1974
Defamation Act 2005 (NSW)
Limitation Act 1969 (NSW)
Limitation Act 2005 (WA)

CATEGORY: Principal judgment

CASES CITED: Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676
Commercial Union Assurance Co v Ferrcom Pty Ltd (1991) 22 NSWLR 389
D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1
Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575
Macquarie Bank Limited v Berg [2002] NSWSC 254
Maple v David Syme & Co Ltd [1975] 1 NSWLR 97
Murphy v Lewis [2009] QDC 37
Noonan v Maclennan [2010] QCA 50
Rainey v The State of Western Australia (No 3) [2010] WASC 83
Rodgers v Nine Network Australia Pty Ltd (No 2) [2008] NSWDC 275
Segal v Waverley Council (2005) 64 NSWLR 177
Spautz v Kirby (1989) 21 NSWLR 27

PARTIES: Norman Phillip Carey (Plaintiff)
Australian Broadcasting Corporation (Defendant)

FILE NUMBER(S): SC 09/297543

COUNSEL: Mr T Molomby SC (Plaintiff)
Mr J Sheahan SC / A T S Dawson (Defendant)

SOLICITORS: RBHM Commercial Lawyers (Plaintiff)
ABC Legal Services (Defendant)

- 19 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

30 JUNE 2010

09/297543 NORMAN PHILLIP CAREY v AUSTRALIAN BROADCASTING CORPORATION

JUDGMENT

1 HER HONOUR: These are proceedings for defamation arising out of the defendant’s broadcast of a documentary called “The Boys” on the Four Corners programme on ABC television. The subject of the documentary was the collapse of the Westpoint group of companies and its impact on investors. The documentary was highly critical of the plaintiff, Mr Norman Carey, who was described by the journalist as “the man at the source of all this investor misery”. Mr Carey sues on the broadcast and also on the publication of a transcript of the broadcast on the ABC’s website.

2 Two threshold matters arise for the Court’s determination. The application formally before the Court is a notice of motion filed by Mr Carey seeking an extension of the time within which the action may…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2010] NSWSC 709
Decision Date: 30 June 2010

CaseChat Overview and Summary

The plaintiff, Carey, brought an application under section 23 of the Defamation Act 2005 against the Australian Broadcasting Corporation for leave to bring further proceedings. The dispute centered on allegations of defamation made by the defendant against the plaintiff, which the plaintiff claimed were defamatory and required legal action. The court was tasked with determining whether the plaintiff could be granted retrospective leave to bring the proceedings and if the application for an extension of time to bring the proceedings could be upheld, considering the plaintiff's limited access to funds and the internal complaints process already undergone.

The legal issues before the court involved whether leave could be granted retrospectively and if it was not reasonable for the plaintiff to have commenced an action within the limitation period. The court had to consider the plaintiff's limited access to funds and the internal complaints process already undergone in determining whether the plaintiff's delay in bringing the proceedings was justified. The substantive law applicable to the defamation claim was also a consideration in assessing the merits of the application.

The court found that the plaintiff's limited access to funds and the internal complaints process did not provide sufficient grounds for the court to grant retrospective leave to bring the proceedings. The plaintiff's delay in bringing the proceedings was deemed not reasonable in the circumstances. Consequently, the application for leave to bring further proceedings was dismissed. The court ruled that the plaintiff's circumstances did not sufficiently excuse the delay in bringing the action within the limitation period.

Orders