Casley v Australian Broadcasting Corporation
[2013] VSCA 182
•15 AUGUST 2013
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 |
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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 that the summons be dismissed with costs.[1]
[1]Casley v Australian Broadcasting Corporation [2013] VSC 251.
The applicant now seeks leave to appeal from his Honour’s judgment and orders. If leave be granted, he seeks the setting aside of those orders and in lieu thereof an order that time be extended as sought in his summons. A draft Notice of Appeal seeks those orders on six grounds; I return to these below.
In my view, no doubt is raised as to the correctness of his Honour’s judgment and orders. Accordingly the application must be dismissed. The reasons for that conclusion follow.
Limitation of Actions Act
Section 23B, and s 5(1AAA), were introduced into the Limitations of Actions Act by the Defamation Act 2005 (Vic), which commenced on 1 January 2006, in pursuance of a scheme of uniform laws of defamation in Australia.
An object of the scheme is ‘to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter’.[2] In aid of this object a new statutory procedure was introduced, called ‘Offers to make amends’, a process triggered by the aggrieved person giving the publisher a ‘concerns notice’ which informs the publisher of the defamatory imputations carried about the aggrieved person.[3] The procedure is regulated by the statute and provides a method by which a defamation matter may be resolved without litigation.
[2]Defamation Act 2005 (Vic) s 3(d).
[3]Defamation Act 2005 (Vic), Part 3, Division 1.
The defamation proceeding
The Statement of Claim alleges that the applicant is and was a well-known and frequent caller to radio talk back programmes, and since May 2010 the secretary of the People Yes Party. The applicant deposed that on 2 July 2010 he was listening to radio station 3LO when Jon Faine invited listeners to ring to express their views on air about the proposed mining tax. The applicant telephoned and his call was put live on air. The following occurred:
Presenter: ‘John in Sandringham. Morning to you, John.’
Mr Casley: ‘Oh, good morning, Jon. Look, er, the tax doesn’t stop the profits being taken out by the bucketful every year and this is the enormous problem that’s facing Australia.’
Presenter: ‘It’s John from Brighton, isn’t it?’
Mr Casley: ‘Er, no; Sandringham.’
Presenter: ‘Yeah, Brighton. It’s John Casley. Good morning, how are you?’
Mr Casley: ‘Hello, Jon.’
Presenter: ‘Have you moved?’
Mr Casley: ‘Ah, yes.’
Presenter: ‘OK. Well, John from Brighton in Sandringham. But let’s just be clear, your – umm – status with ABC talkback I don’t think has changed, John.’
Mr Casley: ‘Well, all I wanted to say was that the People Yes Party has a policy which puts a tax …’
Presenter: ‘You’re not welcome to come on and spruik a political party, and, John, owing to your repeated racist utterances on the program, as you well are aware, you have been banned. So John from Sandringham or John from Brighton, it’s still the same guy.’
The Statement of Claim alleges that these words were defamatory of the applicant, they bearing the following meanings, namely, that:
a) Mr Casley has been banned from ABC’s Mornings with Jon Faine programme;
b) Mr Casley was a racist;
c)Mr Casley made repeated racist utterances on ABC’s Mornings with Jon Faine programme;
d)Mr Casley had been banned from speaking on ABC’s Mornings with Jon Faine programme owing to his repeated racist utterances.
The applicant claims damages including aggravated damages.
How did the applicant respond?
The applicant deposed that he felt aggrieved and hurt by the suggestion that he was racist and had been banned from the programme. So, on 2 July 2010 he wrote to management at the ABC to complain. Among other things, he stated that Jon Faine had unjustly attacked his character, damaged the reputation of his media business and denied his right to democratically express his views on government radio. The letter concluded:
I believe a right-of-reply could be an appropriate redress for these breaches of media justice over an extended period. To this end I would need that in 3 consecutive weeks, in the same time slot as this morning’s dialogue, I am given at least 7 minutes to explain my long radio absence, to correct injustice given to my character and business, and to express some democratic views that have been denied me. This could be done with or without Jon Faine or another presenter participating.
Thereafter I request management to ensure that Jon Faine accepts callers in the order given to him by ABC production staff.
The applicant received a reply from the ABC on 2 August 2010. The letter referred to the ABC’s Code of Practice and advised that programme teams had a full discretion in deciding what to air, that the applicant had had many opportunities to speak in the past but concerns had been raised about the nature of his comments. These concerns and the confusion about his identity were the reasons that his call was terminated. The letter concluded with advice that:
There is no opportunity for talkback callers to be given a “right of reply”, as this would defeat the purpose of an open talkback session seeking to present a diversity of views.
On 4 August 2010 the applicant wrote again to the ABC. He requested evidence of the ABC’s belief that he had made ‘racist utterances’, assuming the ABC supported Jon Faine.
On 20 August 2010 the applicant wrote to the Australian Communications & Media Authority (ACMA); he enclosed the correspondence with the ABC and requested that ACMA ask the ABC for a proper response. He followed this with further letters.
On 31 August 2010 ACMA replied as follows:
Dear Mr Casley
Thank you for your letters to the Australian Communications and Media Authority (the ACMA) dated 20, 23 and 25 August 2010 respectively.
From your letters I understand that on 2 June 2010, during the program Mornings broadcast on Melbourne ABC local radio (3LO), the presenter Jon Faine terminated a call from you and made comments about you on air. Your concerns arising from this incident include:
·denial of an opportunity to you to express your viewpoint;
·discrimination against certain political views;
·attack upon your character and damage to the reputation of your business;
·an ‘untruth’ about you which Mr Faine expressed on air;
·unsatisfactory responses to your complaints from the ABC Local Content Manager Victoria; and
·unsatisfactory treatment by 3LO production staff of telephone calls you made on 25 August, asking why you had been banned as a caller.
The ACMA is the Commonwealth body responsible for the regulation of broadcasting, the internet, radiocommunications and telecommunications. In relation to the ABC, however, the ACMA’s jurisdiction is limited to matters covered by the ABC code of practice (copy enclosed).
The ABC is not required, under the code, to put any caller who requests it to air, or to explain the reasons for its decision not to do so. Further, defamation matters (such as damage to reputation) are not covered by the code. If you believe you and your business have been defamed, you may seek redress through the legal system.
In relation to the other matters you have raised: the code of practice contains requirements in relation to accuracy in factual content and impartiality in the case of news, current affairs, opinion, and topical and factual content. It also contains a requirement in relation to balance in the case of news and current affairs content.
If you consider that the ABC has breached the code in the broadcast on 3LO on 2 June 2010, you may make a complaint about the matter. Your complaint must be made to the ABC in the first instance. It should be directed to:
ABC Audience and Consumer Affairs
GPO Box 9994
MELBOURNE VIC 3000
Any complaint you make should clearly link your concerns to code requirements, ie it should make explicit reference to the code and focus on the issues that are covered by the code. In addition, if you consider, for example, that the broadcast breached the accuracy requirements because an ‘untruth’ was told about you, you should clearly identify the material broadcast that is of concern to you and indicate why you consider it inaccurate. The same would apply to any other code concerns you might have.
If you make a complaint in these terms to the ABC, and either do not receive a response within 60 days, or receive a response from the ABC but are dissatisfied, you may then refer the matter to the ACMA for consideration.
I enclose a brochure with further information about the ACMA’s role in relation to complaints about the ABC.
I hope this information is of assistance.
The applicant deposed that he read the Code of Practice. Clause 7 of the Code relates to complaints. Clause 7.1 provides that:
This Code of Practice does not apply to any complaint concerning content which is or becomes the subject of legal proceedings or any complaint about a radio or television program which is made to the ABC more than six months after the broadcast to which it refers.
Clause 7.2 required that complaints that the ABC has acted contrary to the Code be directed, in the first instance, to ABC Audience and Consumer Affairs. Clause 7.3 provided for review of responses to complaints by the Complaints Review Executive who can consider the complaint afresh. Clause 7.4 provides for an Independent Complaints Review Panel (ICRP) appointed by the ABC Board to review written complaints which relate to serious cases of factual inaccuracy, bias, lack of balance or unfair treatment arising from ABC content. A complaint of that nature could only be referred to the ICRP for review if, inter alia, the complainant was dissatisfied with the response under cl 7.2. Clause 7.5 dealt with the circumstances in which complaint could be made to ACMA.
The applicant deposed that he understood cl 7.1 to mean that if he brought an action against the ABC in the courts, ACMA would not deal with his complaint as a breach of the Code. He continued:
13.I wanted to continue to pursue my complaint under the Code for three reasons:
a)Firstly, I wanted an opportunity to vindicate my reputation by correcting the inaccurate statements about me on air.
b)Secondly, I believed that there had been breaches of the Code, including inaccuracy, lack of impartiality and discrimination against me and my political views.
c)Thirdly, I did not know or anticipate at that time that it would take a further ten months for my complaint to be resolved by the ABC and ACMA,[4] given that my first complaint was made on 2 July 2010. I expected it to be a cheaper, as well as a quicker, way to achieve vindication, than legal action through the Courts.
14.I did not want to commence legal proceedings because I wanted the ABC and, if necessary, ACMA to consider my complaint as a breach of the Code which, as a result of clause 7.1 of the Code, I believed was not possible if I brought a legal (or Court) action in defamation against the ABC.
[4]But cf (as Beach J noted in footnote 2) the plaintiff’s second letter written on 24 January 2011 to ACMA in which he stated that he understood that the investigation “could take a lengthy period”.
On 5 September 2010 the applicant wrote to the ABC complaining of breach of a string of clauses in the Code.
The ABC responded on 1 October 2010 stating, inter alia, that the broadcast was in keeping with the ABC’s editorial standards for accuracy; in short, the complaints were rejected.
On 9 October 2010 the applicant wrote to the ABC with questions as to racism and banning.
The next day the applicant wrote to ACMA, which responded on 18 October 2010 with advice that ACMA would not act until the issue with the ABC was resolved. The letter concluded:
Please be aware that the ACMA has not as yet made any assessment of your complaint, nor will we do so until and unless you consider that the possibility of a first-instance resolution (ie between you and the ABC directly) has been exhausted.
On 16 November 2010 the applicant sent a long letter to ACMA requesting an investigation of his complaint. He stated:
In essence the basis of my complaint:
1. Jon Faine made 3 inaccurate [untrue] accusations on 2nd July 2010:
[a] I made repeated racist utterances on air.
[b] I had been banned before 2nd July.
[c] I was well aware of this banning.
Further on in the letter the applicant said:
3. I agree that character attack and business damage is irrelevant.
And, almost at the end, the applicant said:
Mark asked me what I want from all this. I don’t seek money or apology. I only want what has been denied me deviously, untruthfully and partially for ten long years. I want the accuracy and inaccuracy with my complaint voiced on the 3LO morning talkback in explanation, debate, public participation, question & answer --- [I don’t even mind Jon using the 7 second delay button to stop any bad language from plutocratic puppets!] I want this done as outlined in my letter of 2nd July. After the prolonged decision making since that date, and after the loss of opportunity during 2 elections, I think it fair to ask for another 21 minutes some time next year.
In reply, on 19 November 2010 ACMA advised that it could investigate the complaint that the statement that he had made ‘repeated racist utterances’ was inaccurate, and that the material broadcast was not impartial. But ACMA could not, at that stage:
… investigate your complaint that the following statements were inaccurate:
·“You have been banned”; and
·“You are well aware [that you have been banned]”.
The ACMA can only investigate complaints that have first been made to the ABC. As demonstrated above [in this letter], you have not made these complaints to the ABC.
…
Given the above, it is unclear whether you would wish the ACMA to conduct an investigation limited in scope to the matters outlined … . Accordingly, your advice on the matter is sought. In the meantime, the ACMA will not be taking any further action in respect of your complaint.
On 2 December 2010 the applicant wrote to the ABC clarifying his complaint. He concluded with the following explanation of what he sought:
Mark, you asked me by telephone what I wanted from all this absurdity. I don’t want money or apology. I want opportunity to redress what is honestly judged to be, communication inaccuracy and bias, along the lines I suggest in my letter of 2nd July.
The ABC responded on 23 December 2010. The complaints were rejected. In particular, as to ‘racist remarks’, it was stated that Mr Faine was entitled to his opinion.
On 9 January 2011 the applicant wrote to ACMA requesting that it investigate his complaint. He followed that with a series of further letters.
ACMA wrote to the applicant on 19 May 2011 with an enclosed preliminary report which found no breach of the Code. The applicant was invited to comment on the report before a final decision was made.
The applicant forwarded his comments to ACMA on 7 June 2011.
On 6 July 2011 the applicant received the final report from ACMA. The conclusion remained that there was no breach of the Code.
The applicant deposed that he ‘had not brought proceedings by this stage as he did not want to jeopardise the possible resolution of the matter by ACMA’.
Subsequently, on 23 December 2011, the applicant wrote to ACMA stating that he wished the ACMA decision to be reviewed first by ACMA and then by the Administrative Appeals Tribunal.
On 7 May 2012, ACMA responded with advice that there was no right to have ACMA review its decision, and there was no provision for review by the Administrative Appeals Tribunal. It was stated that if the applicant had concerns about the way in which ACMA conducted the investigation, he may make a complaint to the Commonwealth Ombudsman.
The applicant took no further step until he commenced the defamation proceeding on 27 March 2013.
ACMA
Provisions for the making of complaints to ACMA, and the role and powers of ACMA in relation thereto, are contained in the Broadcasting Services Act 1992 (Cth). For present purposes reference should be made to ss 150-152.
Section 150 provides that:
(1) If:
(a)a person has made a complaint to the Australian Broadcasting Corporation … on the ground that the Corporation has, in providing a national broadcasting service … acted contrary to a code of practice developed by the Corporation and notified to the ACMA; and
(b)either:
(i)…
(ii)the person has received a response… but considers that response to be inadequate;
the person may make a complaint to ACMA about the matter.
So far as relevant, s 151(1) provides that ACMA must investigate the complaint. Section 152 provides:
(1) If, having investigated a complaint, the ACMA is satisfied that:
(a) the complaint was justified; and
(b)the ACMA should take action under this section to encourage the Australian Broadcasting Corporation … to comply with the relevant code of practice;
the ACMA may, by notice in writing given to the Australian Broadcasting Corporation … recommend that it take action to comply with the relevant code of practice and take such other action in relation to the complaint as is specified in the notice.
(2)That other action may include broadcasting or otherwise publishing an apology or retraction.
(3)The ACMA must notify the complainant of the results of such an investigation.
It is important to note that if ACMA upholds a complaint, the action which it may take is limited to making a recommendation, as distinct from a power to require the ABC to take specified action.
The judgment
After referring to matters of background and factual context, his Honour considered the interpretation and application of s 23B and in that regard referred to decisions, including decisions of courts of appeal, on the equivalent provision in Queensland,[5] Western Australia and New South Wales.[6] He then referred to Noonan v MacLennan,[7] where Keane JA said that:
Section 32A(2) of the Act[8] proceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence an action to vindicate his or her legal rights in accordance with the time limits provided by law. While s 32A(2) proceeds on this assumption, it is obvious that only in relatively unusual circumstances will a court be satisfied that it is not reasonable to seek to vindicate one’s rights in accordance with the law. The burden is on a plaintiff to point to circumstances which make it not reasonable to seek to enforce his or her legal rights in the way required by the law.[9]
Beach J also referred to a passage in the judgment of Chesterman JA in Noonan.[10]
[5]Noonan v MacLennan [2010] 2 Qd R 537; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175; Jamieson v Chiropractic Board of Australia [2011] QCA 56; Mowen v Morning Bulletin APN & Ors [2012] QSC 194.
[6]Rayney v The State of Western Australia (No 3) [2010] WASC 83; Wookey v Quigley (No 2) (2010) WASC 209; Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676; Lakaev v Denny [2010] NSWSC 1480; Barach v University of New South Wales [2011] NSWSC 1327; Ritson v Gay & Lesbian Community Publishing [2012] NSWSC 483; Carey v Australian Broadcasting Corporation (2012) 290 ALR 348; Houda v State of New South Wales [2012] NSWSC 1036. See further, Rametta v Deakin University [2010] FCA 1341.
[7][2010] 2 Qd R 537.
[8]Limitations of Actions Act 1974 (Qld).
[9][2010] 2 Qd R 537, 541 [15]. Section 32A(2) was the equivalent provision in the Queensland legislation to s 23B(2).
[10]Ibid 547 [50].
I interpolate that following his above statement, Keane JA observed that assistance in understanding the legislative intention which informed s 32A(2) were the ‘offer to make amends’ procedures, intended to resolve civil disputes without recourse to litigation. Keane JA continued:
16In this context one can understand that s 32A(2) of the Act is apt to encompass a case where the plaintiff has been engaged in the pursuit of non-litigious processes to vindicate his or her rights. In such a case, it may well be unreasonable to disrupt those processes and to incur needless expense by commencing proceedings.
17One cannot seek to give an exhaustive list of the kinds of cases which might fall within s 32A(2) of the Act, but other cases which come to mind are cases where a plaintiff is not able to establish the extent of the defamation or is without the evidence necessary to establish his or her case during the year after the publication. An action brought in such circumstances might be said to be speculative or irresponsible. In such cases it might be said that the commencement of proceedings and the incurring of costs would be so disproportionate to the prospects of success or to the quantum of damages which might have been expected to be recoverable as to render the commencement of proceedings unreasonable.
Beach J then referred to another decision of the Queensland Court of Appeal, Pingel v Toowoomba Newspapers Pty Ltd[11] for two matters; first, the reiteration by Fraser JA of the point that defamation claims should ordinarily be pursued very promptly[12] and, secondly and particularly, for the propositions concerning s 32A stated by Applegarth J following his analysis of the judgments in Noonan. It is to be noted that while Applegarth J dissented in the result, the seven propositions were referred to with approval by White JA (with whom Muir JA and Philippides J agreed) in Jamieson v Chiropractic Board of Australia.[13]
[11][2010] QCA 175.
[12]Ibid [37].
[13][2011] QCA 56, [22].
Beach J said that he agreed with both the analysis and the propositions; modified to apply to s 23B, the propositions were:
(a)First, under s 23B the burden is on the applicant for an extension of time to point to circumstances which make it not reasonable in the circumstances to have commenced a proceeding within one year from the date of the publication.
(b)Secondly, the circumstances that might give rise to an extension are left at large.
(c)Thirdly, the test posed by s 23B(2) is an objective one. It is not satisfied by showing that the applicant believed that he or she had good reason not to sue.
(d)Fourthly, if the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period, then it must extend the limitation period. Unlike other extension of time provisions, there is no discretion whether or not to extend time. However, a discretion exists as to the length of the extension to be granted which, in any event, may not exceed three years from the date of the defamatory publication.
(e)Fifthly, the section requires more of an applicant than to show that it would have been reasonable not to commence a proceeding until after the one year period had expired: the court must be satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced a proceeding within the one year period.
(f)Sixthly, the circumstances must be sufficiently compelling to satisfy the court that it was not reasonable in the circumstances to commence a proceeding within the one year period the law ordinarily requires litigants to commence proceedings.
(g)Seventhly, s 23B of the Act proceeds on the assumption that there may be circumstances where it will not be reasonable for a plaintiff to commence a proceeding to vindicate his or her legal rights in accordance with that time limit.[14]
[14]Reasons [28].
As to the test being objective, Beach J agreed with Fullerton J in Lakaev v Denny[15] where her Honour stated that this did not mean the applicant’s reasons for not commencing a proceeding within one year are ignored. Rather, as Beach J put it:
… the test of reasonableness under the section is objective in the sense that the circumstances to which the section refers are those that the court is satisfied are objectively established and not those that the plaintiff believed (however reasonably) to exist. Further, a plaintiff will not discharge the statutory onus merely by asserting a subjective belief that it was not reasonable to bring the proceeding in the 12 month period following publication, or merely by demonstrating that his or her election to pursue another remedy was a reasonable or viable option to commencing a proceeding.[16]
His Honour also referred to the explanation on this aspect provided by McCallum J in Houda v State of New South Wales.[17]
[15][2010] NSWSC 1480, [18].
[16]Reasons [29].
[17][2012] NSWSC 1036, [11]-[12].
Beach J then turned to the resolution of the application. He acknowledged that the authorities showed there may be circumstances where settlement negotiations between the parties made it not reasonable to commence a defamation proceeding within the one year limit. At the same time the mere fact of settlement negotiations does not necessarily lead to that conclusion. Further, the present was not a case of settlement negotiations between the parties, in the ordinary sense that where negotiations are unsuccessful litigation follows. In such circumstances it might not be reasonable to commence a proceeding if settlement could obviate the need to commence a proceeding. His Honour continued:
34However, the ACMA complaint route taken by the plaintiff in the present case is not an alternative to litigation of the same kind that settlement negotiations might be. The ACMA complaint route taken by the plaintiff was, on the plaintiff’s material, a true alternative to litigation in the sense that one either took that route or one could issue defamation proceedings. That is, what the plaintiff was offered under the ABC’s Code of Conduct and by ACMA was a method for resolving disputes not involving defamation proceedings. Clause 7.1 of the ABC’s Code of Practice provided that the Code of Practice did not apply to any complaint “which is or becomes the subject of legal proceedings”. ACMA’s letter of 31 August 2010 made it clear to the plaintiff that its jurisdiction was “limited to matters covered by the ABC Code of Practice” and that “defamation matters (such as damage to reputation) [were] not covered by the Code”.
35Notwithstanding these matters, the plaintiff chose to pursue the ACMA complaint route as if defamation proceedings would not be taken against the defendant. Certainly the plaintiff did not swear to pursuing the ACMA complaint route in the belief (or with the intention) that if that did not produce a result he was entirely satisfied with, then he proposed to commence defamation proceedings.
36Even if one could liken the ACMA complaint route to an alternative to litigation in the same way that the pursuit of settlement negotiations might be, there is nothing in the material in this case that suggests that the plaintiff would not have commenced the current defamation proceeding in the event he did not receive everything he wanted in relation to the resolution of the dispute by a determination, or publication of a report, by ACMA. The ACMA complaint route was never likely to produce an award of damages or an award of aggravated damages as claimed in the present proceeding.[18] These were always remedies that required the bringing of court proceedings.
37In the circumstances, while I might be satisfied that it was reasonable for the plaintiff to take the course he took, I am not satisfied that it was not reasonable for the plaintiff to commence the present proceeding within one year from the date of the broadcast. Accordingly, the plaintiff’s application for an extension of time must be refused.
[18]Cf s 152 of the Broadcasting Services Act 1992 (Cth).
His Honour then considered what period of extension he would have granted if he had been satisfied that it was not reasonable for the applicant to have commenced his proceeding within one year from publication.
The applicant submitted that if the court was so satisfied, the court ‘must’ extend the period until the date the proceeding was commenced. The judge rejected the submission, it being contrary to authorities referred to earlier.[19] They hold that the court has a ‘discretion as to the length of the extension to be granted’.[20]
[19]Noonan v MacLennan [2010] 2 Qd R 537, 547 [47]; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175, [87] (Proposition 4); and Jamieson v Chiropractic Board of Australia [2011] QCA 56, [22].
[20]Noonan v MacLennan [2010] 2 Qd R 537, 547 [47].
His Honour concluded that if the question of extension had arisen, the proper exercise of discretion would have been to extend the period for 12 months from 6 July 2011. That would not have saved the applicant’s proceeding.
Discussion
The applicant’s draft notice of appeal attacks a particular conclusion of his Honour as internally inconsistent (Ground 1), contends that he erred in his reasoning as to the effect of taking the route of complaining to the ABC and ACMA (Grounds 2, 5 and 6), and that he erred in law in construing s 23B(2) as conferring a discretion as to the period of an extension (Grounds 3 and 4).
Ground 1
In my view Ground 1 has no substance. The impugned passage appears in paragraph [37] of his Honour’s reasons. The submission is that for his Honour to be satisfied that it was reasonable for the applicant to take the course he did is inconsistent with the finding that it was not reasonable to commence the proceeding within one year from the date of the publication.
I reject the submission. There is no inconsistency. The distinction is acknowledged in the authorities and is obvious having regard to the terms of s 23B(2). The requirement of ‘not reasonable’ takes the cases out of a more general consideration of what was reasonable in the circumstances.
Grounds 2, 5 and 6
Ground 2 contends – with no particularity - that his Honour erred in not finding that it was not reasonable to have commenced the proceeding within the one year period. Grounds 5 and 6 raise particular reasons why that is so. Summarised, the complaints are:
5(a)The judge was wrong to conclude that the ACMA complaint route taken by the applicant was not an alternative to litigation as settlement negotiations might be.
(b)The judge should have concluded that the remedies available under s 152(b) of the Broadcasting Services Act offered the applicant the opportunity to vindicate his reputation in an alternative manner to an award of damages for defamation.
6(a)The judge was wrong in finding that the ACMA complaint route taken by the applicant was, on the applicant’s material, a true alternative to litigation in the sense that one either took that route or one could issue defamation proceedings.
(b)The judge ought to have found that but for –
(i)the restrictions imposed on the applicant by cl 7.1 of the Code of Practice, and
(ii)ACMA’s delay in providing its decision one year and four days after the 2 July 2010 publication,
the applicant would have had the right to both have his complaint determined by ACMA and, in the absence of a satisfactory determination, to institute defamation proceedings against the ABC. The findings referred to at 1(a) and 2(a) above were made in the first and second sentences of paragraph [34] of his Honour’s reasons.
Counsel elaborated upon these grounds in his written and oral submissions. Having considered those submissions, I am of the view that his Honour’s ultimate conclusion that the applicant had not satisfied the test in s 23B(2) was correct.
The first observation is that the task is to determine if the statutory test is satisfied. That is to say, in the circumstances was it not reasonable for the applicant to have commenced an action within the period of one year from the date of publication. The concentration is upon the circumstances of the particular case. While it is understandable that on occasions judges have essayed an attempt to identify circumstances in which an applicant might satisfy the test, the danger thus introduced is that the example or analogy may come to be treated as in the nature of a gloss on the legislation. In the present case, the reference to settlement negotiations in his Honour’s reasons can be traced back to earlier decisions and, of course, the submissions put to his Honour. But there was no error in this. His Honour was dealing with the submissions in the case before him and seeking to properly appreciate the course of action undertaken by the applicant.
An underlying thread in the applicant’s submissions was that the overall period from the applicant’s complaint to ACMA on 28 August 2010 until the final decision on 6 July 2011 was relevant, not just because by the latter date the period of one year had past, but because of a seeming unfairness. Of course it was not said that ACMA deliberately delayed, but there was a tenor about the way the point was put. This overlooks the true course of the correspondence that indicates when ACMA could commence its investigation, and the lengthy and detailed report provided in May 2011 (prior to the expiration of the period of one year) and the final report in July 2011. Moreover, the preliminary report indicated as clearly as may be what the final report would conclude. As the respondent submits, the May 2011 preliminary report put the applicant on notice, and he could have commenced his defamation proceeding within the one year period.
Nevertheless, the applicant submitted that the fact of the delay until 6 July 2011 was relevant to the question whether it was not reasonable for the applicant to have commenced proceedings prior to the expiry of the limitation period. In particular:
(1)The ACMA investigation could only be pursued if proceedings for defamation were not commenced.
(2)The outcome of the ACMA complaint was relevant to an assessment of any damages to which the applicant might be entitled in a defamation proceeding.
These two points were developed separately.
The first point is based on cl 7.1 which precludes the Code complaint procedure, including a complaint to ACMA, in the event of litigation. It was submitted to be important for the applicant to pursue relief from ACMA because it could provide relief to the applicant not otherwise available under the Defamation Act. There could be, under s 152(2), a recommendation that the ABC publish an apology or retraction, whereas the only remedy in defamation was damages. As the ACMA investigation was finalised four days after the expiration of the one year period, the applicant was thus precluded from launching defamation proceedings prior to this date without prejudicing his right to relief from ACMA.
With respect, this submission is flawed. ACMA did not provide ‘relief’, at least in any sense comparable to that which might be obtained at law in a defamation proceeding. ACMA could only recommend action which may include broadcasting or otherwise publishing an apology or retraction. Hence, even if there were to be a recommendation of action, the action may not have included an apology or retraction. And, of course, even if it did the ABC was not obliged to implement any such recommendation. Furthermore, if the ABC’s response to the applicant were an indication of likely response in the event of a recommendation of an apology or retraction or otherwise, it was on the cards that it would have maintained its prior position and declined to act in accordance with the recommendation.
There is another fundamental point. The premise in the submission is that the applicant was taking the ACMA route in aid of, or as complementary to, a future defamation proceeding. There were a few strands to this: an apology or retraction would complement his position in relation to relief in a defamation proceeding, and would be relevant to damages in such a proceeding. Further, the latter consideration would bear on his decision whether to commence such a proceeding.
But this does not sit with the applicant’s own words. In his letter to the ABC dated 2 July 2010, and his letter to ACMA dated 16 November 2010, he stated that he wanted a right of reply on air, and, in the latter letter, that character attack and business damage was irrelevant, and he did not seek money or an apology. He confirmed this in his further letter to ACMA dated 2 December 2010 which made clear that he wanted the right to reply on air. This was his chosen course. This is inconsistent with the submission, and consistent with a decision not to go the route of a proceeding for defamation.
The applicant’s submissions then turned to his Honour’s finding (referred to in point 2(a) above) that on the applicant’s materials the ACMA complaint route was a true alternative to litigation in the sense that one either took that route or one could issue defamation proceedings.[21] That was said to be erroneous: the ACMA procedure was not a true alternative and hence the applicant did not elect between the two courses of action. This was because the applicant could have relief via the ACMA complaint that was not available in a defamation proceeding, but pursuing the ACMA complaint left him free to pursue defamation. It was said further that his Honour erred in his understanding of the applicant’s material; that, considered objectively, he had not made an election as suggested. Further, the finding ignored the object of the Defamation Act of promoting speedy and non-litigious methods of resolving disputes.
[21]Reasons [34].
There is, I think, an element of misunderstanding of his Honour’s reasons in this submission. His Honour’s finding was based on his view of the applicant’s materials. There is no reason to suppose that his Honour did not determine the case on an objective basis. Moreover, in my view the finding was well open on the evidence. That is, that the applicant determined to proceed via the ABC and ACMA complaint route rather than to sue for defamation. Thus understanding the matter, it was ‘a true alternative to litigation’.[22]
[22]Reasons [34].
The applicant’s submissions then turned to his Honour’s statement that the ACMA complaint route was never likely to produce an award of damages as claimed in the defamation proceeding.[23] This, it was said, showed that his Honour focussed on the remedy rather than the nature of the applicant’s cause of action. While damages is the only relief in a defamation proceeding, an award of damages is not the only purpose for bringing such a proceeding. The underlying reason is vindication for harm to reputation. The submission was that his Honour had ignored the inter-relationship between methods of vindication for harm done to one’s reputation and an award of damages.
[23]Reasons [36].
The next step in the submission was that the potential ‘relief’ via the ACMA complaint route, of an apology or retraction, could affect the amount of damages which the applicant might otherwise recover, and thus could have borne on his decision whether to commence a defamation proceeding.
Of course vindication for harm to reputation underlies the claim in defamation, but that does not deny validity to the point that his Honour was making. The point about an apology operating to reduce damages is correct, but the reference to ‘relief’ in the context of ACMA’s powers is erroneous to the extent it likens the ACMA complaint procedure to that of a proceeding at law. His Honour was drawing the distinction.
Finally, I reject the submission that his Honour gave no consideration to the fact that damages are awarded in defamation actions ‘as a vindication of the plaintiff to the public and as consolation to him for a wrong done’.[24] This is well-known, and is to be taken as known to his Honour who is the judge in charge of defamation matters in this court.
[24]Uren v John Fairfax & Sons (1966) 117 CLR 118, 150.
Progressing on, it was submitted that the ACMA complaint constituted an alternative dispute resolution process. As to this, it was submitted that the authorities establish that the engagement in such a process may satisfy the ‘not reasonable’ test in s 23B(2).[25] As already mentioned, this process provided the potential for relief in the form of an apology or retraction which might affect or even eliminate the need for any other remedy. It was submitted that his Honour sidelined the significance of the ACMA process on the basis that it was not an ‘alternative to litigation of the same kind that settlement negotiations might be’ (at [34]). In so characterising the ACMA complaint and discounting its significance as an alternative dispute resolution procedure, his Honour erred. It was further submitted that his Honour’s reasoning was not consonant with both the Defamation Act and the Civil Procedure Act 2010 which encourages litigants to undertake non-litigious avenues to remedy their disputes.
[25]Noonan v MacLennan [2010] 2 Qd R 537, [16]; Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676, [52]; Han v Australian Kung Fu (Wu Shu) Federation Inc [2011] VSC 498, [4].
With respect, the submission lacks substance. While the authorities (being those referred to above) postulate that pursuing an alternative dispute resolution process may mean it was not reasonable to commence proceedings, that result does not automatically follow. That is, as mentioned earlier, the question, objectively determined, is whether in the circumstances it was not reasonable to have commenced litigation within one year from publication. Hence, it would be erroneous to suggest, as perhaps the applicant seems to do, that if the ACMA complaint process was to be characterised as an alternative dispute resolution process that he would, ipso facto as it were, fall into an accepted category and warrant the extension.
Reading his Honour’s impugned statement in the overall context of his analysis, it is clear that underlying his reasons was that the applicant had chosen to pursue the ACMA complaint process and not to litigate. The applicant’s correspondence made his position plain in that respect, and doubtless the reference to the ‘plaintiff’s material’ is to be so understood. Moreover, and putting the point another way, there was no evidence that the applicant was seeking to avoid defamation litigation by achieving a satisfactory outcome through the ACMA process, or that he would commence defamation proceedings if the ACMA process did not satisfactorily resolve the matter. Thus understood, it was not an alternative to litigation and nor was it analogous to settlement negotiations as an alternative to litigation. Finally, the submission concerning the Defamation Act and the Civil Procedure Act misapprehends the strictures of s 23B(2) which his Honour was bound to, and did, act under.
Grounds 3 and 4
Under these grounds the applicant renewed a submission made to his Honour that once the test in s 23B(2) was satisfied the court ‘must’ extend the limitation period. While the power is to extend the period for ‘up to’ three years, in this case, on the test being satisfied, the period should have been extended to the date of commencement of the proceeding. That is, there was no discretion as to the length of the extension. On this construction it was irrelevant to consider, and the judge erred in considering, the applicant’s delay in commencing the extension proceeding.
In construing s 23B(2) his Honour relied upon, and followed, the authority of decisions in the Queensland Court of Appeal.[26] The following passage in the judgment of Chesterman JA in Noonan v MacLennan explains the accepted construction:
The length of the extension was a matter for discretion. It would not have been a proper exercise of discretion to extend time beyond the period within which it was thought unreasonable to have sued.[27]
[26]Noonan v MacLennan [2010] 2 Qd R 537, 547 [47]; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175, [87] (Proposition 4); and Jamieson v Chiropractic Board of Australia [2011] QCA 56, [22].
[27][2010] 2 Qd R 537, 550 [66].
It was submitted for the applicant that the Queensland authorities were wrongly decided in this respect, and should not be followed. It was stated, correctly, that the Court of Appeal in Victoria has not previously had occasion to consider the construction of s 23B and the relevant Queensland authorities, and that this Court should consider afresh the proper construction of s 23B(2).
The difficulty confronting this submission is the requirement stated by the High Court that intermediate appellate courts should not depart from the decision of an intermediate appellate court in another jurisdiction on the interpretation of uniform national legislation unless convinced that that interpretation is plainly wrong.[28] In my view the impugned construction, that there is a discretion as to the length of an extension, is not plainly wrong. It would be a curious result, and one seemingly not consistent with the intention of the uniform law, that on the test in s 23B(2) being satisfied, the limitation period be extended for the whole three year period. That would be open on the applicant’s submission, even if such an extension went beyond the time within which, acting reasonably, a proceeding might be commenced. That would seem to deny operation to the words ‘up to’, and could well operate to allow a potential plaintiff a period of time within which to commence a defamation proceeding that was greater than the limitation period of one year.
[28]Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89, 151-152 [135]; Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, 492.
Finally, if and to the extent that the applicant challenged the actual exercise of discretion as to the period of extension, his Honour’s decision as to that was open and relevant error is not shown. Indeed, in my view, the exercise of discretion was correct.
Conclusion
For these reasons leave to appeal must be refused.
ROBSON AJA:
I have had the advantage of reading in draft the reasons for judgment of Hansen JA. I agree that leave to appeal should be refused and I do so for the reasons given by his Honour.
At the commencement of submissions on behalf of the applicant, counsel for Mr Casley submitted that this case provided this Court with the opportunity to consider the scope and operation of s 23B of the Limitations of Actions Act as it had not previously done so. I do not consider that reason by itself is an appropriate ground for granting leave to appeal. As Hansen JA has shown, there are no valid grounds to grant leave to appeal arising out of the decision of the trial judge and the matter is not made any more appropriate for leave to be granted because this Court has not previously examined s 23B.
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