Isaac v TCN Channel Nine Pty Ltd - [2023] VSC 70

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S ECI 2021 04299

BETWEEN:

STACEY LEE ISAAC	Plaintiff
v
TCN CHANNEL NINE PTY LTD (ACN 001 549 560) & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	15 November 2022
DATE OF JUDGMENT:	23 February 2023
CASE MAY BE CITED AS:	Isaac v TCN Channel Nine Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 70

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DEFAMATION – ‘A Current Affair’ television program alleged that the plaintiff is an “internet troll” – Segment also published online with comments posted by viewers – Application to amend defence and application to strike out defence – Adequacy of particulars of justification – Whether the defendants are entitled to rely upon the defences of contextual truth, fair comment and honest opinion – Whether the defendants are entitled to rely upon the defence of qualified privilege on the basis that the program was a reply to an attack on an interviewee – Defendant must show that defences are tenable and inform the plaintiff and the Court of the case to be advanced at trial –Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 referred to – Agustin-Bunch v Smith (No 2) [2022] VSC 290 referred to – Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 referred to – Defences tenable – Leave to amend defence granted and strike out application dismissed.

PRACTICE AND PROCEDURE – Application by plaintiff for extension of time in relation to claims with respect to time barred publications under s 23B of the Limitation of Actions Act 1958 (Vic) – Whether publications time barred – Joinder of proper defendant after expiry of limitation period for the broadcast of the television program – Construction of amendments made to Limitations of Actions Act 1958 (Vic) pursuant to the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 (Vic) – Impact of single publication rule upon the limitation period – Clear that legislature intended that the single publication rule apply to online publications first uploaded prior to commencement date of amending legislation – Not reasonable for plaintiff to bring the proceeding against the proper defendant prior to the expiry of the limitation period – Proper defendant part of large media conglomerate – Enquiries made prior to the expiry of the limitation period and not responded to – Extension of time granted – Application for extension of time for post 1 July 2021 publications deferred until after the plaintiff applies to amend her statement of claim to plead that those publications caused her serious harm.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Sowden	William Mulholland & Co
For the Defendants	Mr M J Hoyne	Thomson Geer

HER HONOUR:

Introduction and background

These reasons concern applications made concerning, among other things, the pleadings in a defamation proceeding brought by the plaintiff, Ms Stacey Isaac. Ms Isaac is a hairdresser who operates…

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: [2023] VSC 70
Decision Date: 23 February 2023

CaseChat Overview and Summary

Isaac brought an action against TCN Channel Nine Pty Ltd for defamation, alleging that a segment on the “A Current Affair” television program had defamed her by labelling her an "internet troll." The matter was heard in the Supreme Court of Victoria. The legal issues before the court included whether the defendants could rely on the defences of contextual truth, fair comment, honest opinion, and qualified privilege, and whether the plaintiff's claims regarding time-barred publications were within the limitation period. The court also considered the plaintiff's application for an extension of time in relation to those claims and for permission to join the proper defendant after the limitation period had expired.

The court found that the defendants' defences were tenable, meaning they were sufficiently plausible to be pursued at trial. The court emphasised that the defendants had to demonstrate that their defences were tenable and that they had informed the plaintiff and the Court of the case to be advanced at trial. The court referred to previous cases such as Channel Seven Adelaide Pty Ltd v Manock, Agustin-Bunch v Smith (No 2), and Radio 2UE Sydney Pty Ltd v Parker to support its reasoning. Consequently, the court granted leave to amend the defence and dismissed the plaintiff's application to strike out the defence.

Regarding the plaintiff's application for an extension of time, the court held that some of her claims were time-barred under section 23B of the Limitation of Actions Act 1958 (Vic). However, the court granted an extension of time for claims relating to publications that occurred before the commencement of the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 (Vic). The court noted that the single publication rule applied to online publications first uploaded before the commencement date of the amending legislation. The court also granted the plaintiff leave to join the proper defendant after the limitation period had expired, considering the large media conglomerate to which the proper defendant belonged and the plaintiff's enquiries made prior to the expiry of the limitation period that had not been responded to. The court deferred consideration of the extension of time for post-1 July 2021 publications until after the plaintiff amended her statement of claim to plead that those publications caused her serious harm.

In summary, the court allowed the defendants' defences to proceed, granted leave to amend the defence, dismissed the application to strike out the defence, granted an extension of time for some claims, and permitted the joinder of the proper defendant. The court's decision highlighted the importance of timely and adequate particulars of justification in defamation cases and the application of the single publication rule to online publications.

Orders