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Cassar v Network Ten Pty Ltd

Cassar v Network Ten Pty Ltd

Case [2012] NSWSC 680 22 June 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Cassar v Network Ten Pty Limited [2012] NSWSC 680
Hearing dates: 21 March, 30 April, 25 May 2012
Decision date: 22 June 2012
Before: Hislop J
Decision:
1. The amended summons is dismissed.
2. The plaintiff is to pay the defendant's costs of the application other than the costs of the defendant's application to reopen the evidence.

Catchwords: Defamation - extension of limitation period - plaintiff unaware of publication within limitation period - would have become aware of the publication on reasonable inquiry- extension refused.
Legislation Cited: Limitation Act 1969
Defamation Act 2005
Cases Cited: Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537
Rayney v The State of Western Australia (No 3) [2010] WASC 83
Ahmed v Harbour Radio Pty Limited [2010] NSWSC 676
Carey v Australian Broadcasting Corporation [2010] NSWSC 709, (2010) 77 NSWLR 136
Ritson v Gay and Lesbian Community Publishing Limited [2012] NSWSC 483
Wookey v Quigley (No 2) [2010] WASC 209
Han v The Australian Kung Fu (Wu She) Federation Inc [2011] VSC 498
Category: Principal judgment
Parties: Jacob Cassar (Plaintiff)
Network Ten Pty Limited (Defendant)
Representation: T. Molomby SC/J. Reimer (Plaintiff)
J. Hmelnitsky (Defendant)
Conditsis & Associates (Plaintiff)
Ashurst Australia Lawyers (Defendant)

File Number(s): 2012/21034

Judgment

The plaintiff was an independent candidate for the Federal seat of Robertson at the Federal election on 21 August 2010.

During the week preceding the election the plaintiff was involved in an incident which led to assault charges being laid against him. Ultimately he was acquitted of the charges.

On 19 August 2010 TCN Channel Nine Pty Limited ("Channel Nine") published on its evening news a description of the incident which was allegedly defamatory of the plaintiff. On 9 August 2011 the plaintiff sued Channel Nine for damages for the alleged defamation.

The circumstances of the alleged assault were said to be that the plaintiff king-hit another man in a bar, breaking his jaw in two places.

On 20 January 2012 the plaintiff filed a summons seeking an extension of time in which to commence proceedings against the defendant in respect of (a) the publication on the defendant's evening news on 19 August 2010 of an alleged defamation of the plaintiff in respect of the assault and (b) the publication of the above broadcast on the internet.

The extension of time sought in respect of the internet publication was not pressed as that claim had been commenced against the defendant within time. The claim in respect of the publication on the defendant's evening news was pressed. The summons was heard on 21 March 2012 and judgment was reserved.

The only evidence at the hearing (apart from the tender of the statement of claim against Channel Nine) was that contained in the affidavit of the plaintiff sworn on 23 December 2011 and his cross examination upon that affidavit.

The plaintiff gave evidence that on 22 November 2011 he was "googling" his name in relation to the incident…

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.

Continue reading Cassar v Network Ten Pty Ltd

Details

AGLC: Cassar v Network Ten Pty Ltd [2012] NSWSC 680
Case: [2012] NSWSC 680
Decision Date: 22 June 2012

CaseChat Overview and Summary

In the case of Cassar v Network Ten Pty Ltd, the plaintiff sought damages for defamatory statements made by the defendant. The dispute involved the publication of defamatory content on television and online, which the plaintiff alleged caused harm to their reputation. The matter was heard by the Federal Court of Australia.

The primary legal issue before the court was whether the limitation period for bringing a defamation claim should be extended. The plaintiff argued that they were unaware of the defamatory content within the limitation period and contended that they would not have discovered the publication even if they had made reasonable inquiries. The court had to determine whether the plaintiff's lack of knowledge could justify an extension of the limitation period under the relevant legislation.

The court held that the plaintiff's lack of knowledge did not constitute a sufficient ground for extending the limitation period. The plaintiff's failure to discover the defamatory content despite making reasonable inquiries meant that they were not prevented from instituting proceedings within the statutory timeframe. The court concluded that the plaintiff would have become aware of the publication if they had made reasonable efforts to do so, and therefore, the limitation period could not be extended. The plaintiff's claim was dismissed on the basis that it was statute-barred.

The court did not grant the plaintiff an extension of the limitation period, and the defamation claim was dismissed as time-barred. The court's decision emphasised the importance of diligent inquiry in defamation cases and reinforced the principle that ignorance of the facts giving rise to a cause of action does not, by itself, justify an extension of the limitation period.

Orders