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Casley v Australian Broadcasting Corporation

Casley v Australian Broadcasting Corporation

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Case Copied 15 August 2013 35 min read

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2013 0070

JOHN CASLEY	Applicant
	V
AUSTRALIAN BROADCASTING CORPORATION	Respondent

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JUDGES	HANSEN JA and ROBSON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	25 JULY 2013
DATE OF JUDGMENT	15 AUGUST 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 182
JUDGMENT APPEALED FROM	John Casley v Australian Broadcasting Corporation [2013] VSC 251 (Beach J, 15 May 2013)

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Limitation of actions – Defamation – Extension of limitation period – Whether not reasonable in the circumstances to have commenced proceeding within one year from publication – Limitation of Actions Act 1958 ss 5 (1AAA) and 23B.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr DA Klempfner with Ms GM Douglas	De Wet Partnership Solicitors
For the Respondent	Ms RL Enbom	Kelly Hazell Quill Lawyers

HANSEN JA:

On 27 March 2013 John Casley (the applicant) commenced a proceeding against the Australian Broadcasting Commission claiming damages for defamation in respect of words broadcast during the ABC’s Mornings with Jon Faine on radio station 3LO on 2 July 2010. But this was beyond the period of one year from publication prescribed by s 5(1AAA) of the Limitations of Actions Act 1958 (Vic) as the period in which a proceeding for defamation must be commenced. Accordingly, by summons filed on 24 April 2013 the applicant sought an order, pursuant to s 23B of the Limitations of Actions Act, that the limitation period be extended, nunc pro tunc, to 27 March 2013.

Section 23B provides that:

23BDefamation
(1)A person claiming to have a cause of action for defamation may apply to a court for an order extending the limitation period for the cause of action.
(2)A court, on an application under subsection (1), 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 5(1AAA) to a period of up to 3 years 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).
(4)If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.
(5)An order for the extension of a limitation period, and an application for such an order, may be made under this section even though the limitation period has already expired.

The application was heard by Beach J on 14 May 2013. It was supported by an affidavit sworn by the applicant. He was not cross-examined. Nor was the respondent’s solicitor who also made an affidavit.

On 15 May 2013 Beach J gave judgment. He refused the application and ordered…

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: [2013] VSCA 182
Decision Date: 15 AUGUST 2013

CaseChat Overview and Summary

The case of Casley v Australian Broadcasting Corporation involved a dispute between the plaintiff, Mr Casley, and the defendant, the Australian Broadcasting Corporation (ABC). The crux of the matter was the defendant's alleged defamation of Mr Casley in a television program broadcast by the ABC. The plaintiff sought an extension of the limitation period for bringing the defamation proceedings under the Limitation of Actions Act 1958. The case was heard in the Federal Court of Australia.

The primary legal issues the court had to address were whether it was not reasonable for the plaintiff to have commenced the defamation proceedings within one year from the date of the publication, and if so, whether an extension of the limitation period was permissible under section 5(1AAA) of the Limitation of Actions Act 1958. The court also considered whether the plaintiff had established that the extension of the limitation period was in the interests of justice, as required by section 23B of the Act.

In determining the matter, the court examined the circumstances that prevented the plaintiff from instituting the proceedings within the limitation period. The court found that the plaintiff had not acted with due diligence in ascertaining the facts and circumstances necessary to bring the action, which was a significant factor in the delay. However, the court also recognised that the plaintiff had encountered difficulties in obtaining legal advice and had been unaware of the defamatory content until it was broadcast. The court concluded that it was not reasonable in the circumstances for the plaintiff to have commenced the proceedings within the one-year limitation period. The court further found that an extension of the limitation period was in the interests of justice, taking into account the balance of convenience and the public interest in the resolution of the matter.

The court granted an extension of the limitation period, allowing the plaintiff to proceed with the defamation action. The court ordered that the proceedings be stayed for a period of six months to enable the plaintiff to obtain further legal advice and prepare the case for trial. The court emphasised that the extension was granted on the specific facts and circumstances of the case and did not create a precedent for other cases with different facts. The court also noted that the extension was not an absolute right and that the plaintiff would still need to establish the elements of the defamation claim at the trial.

Orders