Casley v Australian Broadcasting Corporation - [2013] VSC 251

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

No. S CI 2013 01521

JOHN CASLEY	Plaintiff
v
AUSTRALIAN BROADCASTING CORPORATION	Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 May 2013
DATE OF JUDGMENT:	15 May 2013
CASE MAY BE CITED AS:	Casley v ABC
MEDIUM NEUTRAL CITATION:	[2013] VSC 251

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DEFAMATION – Limitation of action – Extension of time application – Whether not reasonable in the circumstances for the plaintiff to have commenced proceeding within one year from date of publication – Limitation of Actions Act 1958, ss 5(1AAA) and 23B.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D.A. Klempfner	De Wet Partnership
For the Defendant	Ms R L Enbom	Kelly Hazell Quill

HIS HONOUR:

Introduction

In this proceeding, the plaintiff claims damages for defamation in respect of words allegedly broadcast during the course of the ABC’s Mornings with Jon Faine on 2 July 2010. The proceeding was commenced on 27 March 2013, outside the one year limitation period prescribed in s 5(1AAA) of the Limitation of Actions Act 1958.

By a summons filed 24 April 2013, the plaintiff seeks an order pursuant to s 23B of the Limitation of Actions Act that the limitation period be extended, nunc pro tunc, to 27 March 2013 (being the date upon which the proceeding was commenced). The defendant opposes the plaintiff’s application.

The plaintiff’s claim

The plaintiff describes himself[1] as a well known and frequent caller to radio talkback programs, who has at all relevant times been the secretary to the People Yes Party. According to his affidavit in support of this application, on 2 July 2010, the plaintiff was listening to radio station 3LO when Jon Faine invited listeners to ring in to express their views on air about the then proposed mining tax.
[1]In paragraph one of the plaintiff’s statement of claim.

In his statement of claim, the plaintiff alleges that the ABC published the following words of and concerning him:

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…

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] VSC 251
Decision Date: 15 May 2013

CaseChat Overview and Summary

In the matter of Casley v Australian Broadcasting Corporation, the plaintiff, Mr. Casley, brought an action against the defendant, the Australian Broadcasting Corporation, alleging defamation. The dispute centres on statements made in a television program broadcast by the defendant, which Mr. Casley claims defamed him. The case was heard in the Federal Court of Australia.

The primary legal issues the court needed to address were whether the statutory limitation period for commencing defamation proceedings could be extended under section 5(1AAA) of the Limitation of Actions Act 1958 and whether the defendant's motion for an extension of time could be granted under section 23B of the same Act. The court had to determine if it was not reasonable in the circumstances for Mr. Casley to have commenced his proceeding within one year from the date of publication.

The court found that while Mr. Casley was aware of the defamatory broadcast, it was not reasonable for him to have commenced proceedings within the statutory period due to the circumstances surrounding the matter. The court considered various factors, including the plaintiff's delay in taking action, the reasons for the delay, and whether the defendant had been prejudiced by the delay. The court concluded that the application for an extension of time should be granted, as the public interest in resolving the matter outweighed the defendant's potential prejudice.

The court's decision allowed the plaintiff to proceed with his defamation claim despite the expiration of the limitation period. The court ordered that the time for instituting the proceedings be extended and that the case would proceed to a full hearing to determine the merits of the defamation claim.

Orders