Isaac v TCN Channel Nine Pty Ltd

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 a salon in the southern suburbs of Melbourne, who for a period of time prior to 2017 worked as a hairdresser in Bali, Indonesia. The second defendant, Nine Network Australia Pty Ltd (‘Nine Network’) produces and broadcasts a well-known current affairs program ‘A Current Affair’ (‘ACA’). ACA has its own Facebook page, which is also operated by Nine Network.

On 3 December 2020, ACA broadcast a segment titled ‘Trolls learn a lesson’ (‘segment’). The segment was critical of Ms Isaac and another person, Ms Kellie Smith, who were alleged by ACA to have targeted, or ‘trolled’, a third person, Ms Tristan Moy, with cruel posts and bad reviews on social media, including on a Facebook page titled ‘Bali Bogans’. This site is apparently very popular in Australia, and Ms Moy has, for many years, operated a successful wedding planning business in Bali.

The subject matter of the segment was a defamation proceeding brought in the Magistrates’ Court of Queensland by Ms Moy against Ms Isaac and Ms Smith concerning social media posts authored by them concerning Ms Moy and her wedding planning business (‘Queensland proceeding’). Ms Moy obtained default judgment in the Queensland proceeding, and on 9 November 2020, a magistrate awarded Ms Moy damages of $50,000.00 against Kellie Smith, and $100,000.00 against Ms Isaac. An application made by Ms Isaac to set aside the default judgment was unsuccessful.

Since the segment was broadcast by ACA on 3 December 2020, and posted on ACA’s Facebook page shortly thereafter, Ms Isaac has received a lot of unwelcome attention online, including hostile and offensive comments on the ACA Facebook page (‘comments’). Approximately 4,800 comments have been posted on the ACA Facebook page, and apparently the segment has been viewed approximately five million times on the ACA Facebook page.

This proceeding was issued on 18 November 2021, nearly a year after the first broadcast of the segment on 3 December 2020 (‘first broadcast’) naming the first defendant, TCN Channel Nine Pty Ltd, as the sole defendant. On 18 February 2022, in accordance with orders made by Ierodiaconou AsJ by consent that day, Ms Isaac filed an amended writ and statement of claim adding Nine Network and another party, Nine Digital Pty Ltd, as the second and third defendants to the proceeding. It is common ground that Nine Network is the only proper defendant to Ms Isaac’s claims in the proceeding with respect to the first broadcast, the publication of the segment on the ACA Facebook page, and the publication of the comments.

The dates of the various events set out in the preceding paragraphs are important. On 1 July 2021, the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 (Vic) (‘amending act’) came into effect, which enacted some significant reforms to the law of defamation in Victoria. In particular, the amending act made amendments to the Limitations of Actions Act 1958 (Vic) (‘LAA’) which, depending upon their proper construction and effect, could have a material (and adverse) effect upon the viability and/or value of Ms Isaac’s claims in this proceeding.

The amending act introduced what is commonly referred to as the single publication rule, which provides that, in the case of material published on the internet, time begins to run for the purpose of s 5(1AAA) of the LAA (which imposes a twelve month limitation period for bringing actions for defamation) from the date the material is first uploaded to the internet. Prior to the introduction of the single publication rule, time began to run afresh for publications on the internet each time they were downloaded and read (‘downloaded’), such that, practically speaking, a plaintiff suing in respect of online publications was able to evade the consequences of the strict twelve month limitation period for actions for defamation if they could establish that the publication had been downloaded within the previous twelve months, even if it had first been uploaded many years beforehand.

Relevantly for the purpose of the current application, this proceeding was commenced within twelve months of the first broadcast, but the proper defendant, being Nine Network, was not joined to the proceeding until 18 February 2022, that is, fourteen months after the first broadcast. Essentially, the defendants’[1] position is that the late joinder of Nine Network as a defendant to the proceeding means that Nine Network will only be liable to Ms Isaac (if its other defences do not succeed) for downloads of the segment and comments posted on the ACA Facebook page between 18 February 2021 and 1 July 2021 by reason of the limitation period in s 5(1AAA) of the LAA and the enactment of the single publication rule (‘limitation issue’).
[1]While it is common ground that Nine Network is the only proper defendant to Ms Isaac’s claims in this proceeding, and the parties agree that the first and third defendants should be removed as parties to the proceeding, as they have not yet formally been removed, I shall refer to ‘the defendants’ in these reasons, unless the context requires otherwise.

In their defence filed on 24 June 2022 (‘defence’) the defendants contend that Ms Isaac’s claims with respect to the first broadcast and downloads of the segment and the comments before 18 February 2021 are time-barred. Ms Isaac has applied to strike out those paragraphs of the defence which advance the defendants’ limitation defence. She also seeks to strike out other paragraphs of the defence as being unmaintainable. In turn, the defendants have applied to file an amended defence, which Ms Isaac opposes, on the grounds that the amendments fail to address her criticisms of the defence. Further, Ms Isaac also applies for an extension of time to bring her claims in this proceeding in the event that her primary arguments in relation to the limitation issue do not succeed.

The pleadings

Given the nature and focus of the parties’ applications, I shall summarise the allegations in the further amended statement of claim filed on 6 June 2022 (‘statement of claim’) and the defence in some detail.

After pleading formal matters and referring to the content of the segment, Ms Isaac alleged that the segment would be understood to mean that Ms Isaac:

a.is an internet troll (meaning a person who uses internet carriage services to harass others);

b. posted cruel and bad reviews of a trade rival online;
c.acted in concert with Kellie Smith to harm Tristan Moy’s reputation for personal gain; and
d.is a despicable person who was willing to engage in morally repugnant behaviour to obtain a business advantage.

Ms Isaac then went on to refer to the comments, a subset of which were reproduced in a schedule to the statement of claim, which were said to mean that Ms Isaac:

(a)is an internet troll;
(b)is nasty and selfish person who is willing to engage in online trolling to obtained a business advantage;
(c)is evil;
(d)was motivated by trade rivalry in trolling Tristan Moy;

(e)       is a psychopath;
(f)       is a sociopath;
(g)       is mentally ill and/or unstable;
(h)      is spiteful;
(i)        suffers from a borderline personality disorder;
(j)        is a despicable person; and
(k)       is a criminal.

The statement of claim then went to identify four Victorian residents who had downloaded the segment and the comments in November and December 2021.[2]
[2]It appears from Ms Isaac’s evidence that the comments were removed from the ACA Facebook page sometime early in 2022, but I understand that the segment remains accessible on the ACA Facebook page.

The statement of claim concluded as follows:

In the premises referred to above the plaintiff has:
(a)       been greatly injured in her credit and reputation;
(b)       suffered loss and damage; and
(c)       is entitled in all the circumstances to an award of aggravated damages.
Particulars

The defendant has published the plaintiff’s business details on the ACA Facebook page and encouraged others to contact her at the internet address of her business – [address]. It has published and continues to publish comments that the plaintiff is human garbage (138) and scum (48) and a piece of shit (192), cow (2, 30), sick arsehole (181) nasty wench (142), fuckwit (133), trash (127), lowlife (119), heffa (102), stupid twat (108), mole (15, 94), bitch (64), cunt (65), witch (185), trash can (45), miserable dog (35), tip rat (31) and monster (32). It has published comments calling for the plaintiff to be locked away (38), kidnapped and tortured (187), imprisoned (16, 59, 61, 65, 73, 116, 137, 146, 164) and put in a mental facility (158). The defendant has allowed these comments to remain online about being given a request in a concerns noticed dated 6 October 2021 to remove them. The defendant failed, refused or neglected to respond to the concerns notice or to publish an apology as requested or at all. …

There are two schedules annexed to the statement of claim: the first being a transcript of the segment, and the second being a collection of screenshots of the comments.

The segment is headlined “Trolls learn a lesson”, and the ACA host introduces the segment as follows:

First a story that will make you think twice about posting anything online. It begins with trolls Kellie and Stacey targeting Bali wedding planner Tristan with cruel posts and bad reviews and ends with a very expensive lesson for the pair.

The segment then cuts to an interview between an ACA reporter with Kellie Smith, during which interposed are voiceovers reading posts made on social media by Kellie Smith, and comments from Ms Moy. The segment then goes on to refer to the ‘Bali Wedding Boom’, and a clip of Ms Moy promoting her wedding planning business, followed by further statements by Ms Moy and her lawyer in the Queensland proceeding.

The ACA reporter then said ‘Not long after, another woman Stacey Isaac joined in’, followed by further comments from Ms Moy and her lawyer, interposed with reading of matters posted online by Ms Isaac, and a photograph of Ms Isaac doing a bridesmaid’s hair at Ms Moy’s own wedding in Bali ten years previously. The reporter then said that ‘Tristan says two months before the online trolling started, Stacey started her own wedding planning business in Bali.’

Then followed the reporter explaining that she had tried to contact Ms Isaac at her hairdressing salon, and a further excerpt of the reporter’s interview with Kellie Smith about her connection with Ms Isaac. The segment then went on to cover an unrelated matter concerning Kellie Smith, and then referred to the damages awarded against Ms Isaac and Kellie Smith in the Queensland proceeding.

The second schedule includes screenshots of 190 comments posted between 4 December 2020 and 15 September 2021 which were said to have conveyed the imputations referred to at paragraph 12 of these reasons.

In the defence, the defendants admitted that Nine Network broadcasts ACA, and operates the ACA Facebook page. They admitted that the segment was broadcast on ACA on 3 December 2020, saying that the segment related ‘to the Queensland proceeding and the defamatory and untrue statements which Kellie Smith and Ms Isaac made about Moy on the internet’, but that the summary and the transcript of the segment provided by Ms Isaac and annexed to the statement of claim were incomplete and incorrect.[3]
[3]However, the defendants put forward no alternative version of the segment, and did not suggest that any gaps or inadequacies in the transcript of the segment would affect my ability to evaluate the viability of the defendants’ defences.

As noted above, the defendants contend that the claim against Nine Network with respect to the first broadcast is time barred, and that the claims against it with respect to downloads of the segment and downloads of the comments before 18 February 2021 and after 1 July 2021 are also time barred.

Nine Network denied that the segment and the comments carried the imputations pleaded by Ms Isaac, but pleaded in the alternative that the imputations were true in substance, or were substantially true, relying upon the defence in s 25 of the Defamation Act 2005 (Vic) (‘Act’). Detailed particulars of justification were provided, which will be canvassed further later in these reasons. It is clear from the particulars that the defendants’ plea of justification relied heavily, if not exclusively, upon the evidence relied upon by Ms Moy in the Queensland proceeding.

Nine Network also pleaded that the segment conveyed alternative meanings, which were said to be substantially true, by reason of the particulars of justification referred to above. The alternative meanings said to have been conveyed by the segment were said to be that Ms Isaac:

(a)is an internet troll because she posted hurtful and damaging things about Moy online without a legitimate excuse;

(b)       the plaintiff posted hurtful comments about Moy online;
(c)       acted with Kellie Smith to harm Moy’s reputation; and
(d)      engages in morally repugnant behaviour;
…

Nine Network also relied upon the defence of contextual truth within the meaning of s 26 of the Act, stating that if the segment conveyed any of the imputations relied upon by Ms Isaac:

(a) the segment meant that Ms Isaac, together with Ms Smith, ‘trolled Moy online by posting defamatory and hurtful messages about her that were so serious that substantial awards of damages were made against them’;

(b) the meaning in (a) above was substantially true;

(c) by reason of the truth of the meaning in (a) above, the imputations alleged by Ms Isaac did not further harm the reputation of Ms Isaac.

Nine Network also relied upon the defence of honest opinion provided by s 31 of the Act. The proposed amended defence also seeks to rely upon the defence of fair comment at common law.

Nine Network also relied upon a defence of qualified privilege, asserting that the segment, and the comments, were analogous to a ‘reply to an attack’ made upon Ms Moy by Ms Isaac via social media. Nine Network asserted that the segment and the comments were ‘published in the performance of a legal, moral or social duty or to protect an interest … to persons with a corresponding duty or interest in receiving the offending words’. Nine Network contended that while the relevant attack was made by Ms Isaac against Ms Moy, it was an attack made against Ms Moy in public, and thus permitted a public response, with a mass media publisher in the position of Nine Network having the benefit of ‘an ancillary or derivative privilege in respect of its publication of the reply’.

Nine Network also relied upon, with respect to the comments, a defence of innocent dissemination, contending that:

(a) it was a subordinate publisher within the meaning of s 32(1)(b) of the Act;

(b) Nine Network did not know nor ought to have known, that the comments had been posted, and were defamatory; and

(c) Nine Network’s knowledge (or lack of knowledge) was not caused by any negligence on its part.

The defence concluded as follows:

Further, to the extent (if any) that the defendants are found liable to the plaintiff, the defendants will rely on so much of their defences as succeed, and on the impact of the findings in the Queensland Proceeding to the plaintiff’s reputation, in the reduction of damages.

The applications

Both parties filed summonses on 11 October 2022. The defendants’ summons sought the following relief:

Pursuant to r 36.01 of the [Supreme Court (General Civil Procedure) Rules 2015 (Vic)] the defendants have leave to file a proposed amended defence in the form exhibited to the affidavit of John-Paul Cashen sworn 26 September 2022.

Ms Isaac’s summons sought the following relief:

1.Pursuant to rule 23.02 Supreme Court (General Civil Procedure) Rules 2015 the Defendant’s defence be struck out.
2.In the alternative, pursuant to rule 23.02 Supreme Court (General Civil Procedure) Rules 2015 in respect of the Defence dated 24 June 2022, paragraphs: 3 (d), 6 (c), 7, 9, 11, 12, 13, 14, 15, 16, 17, 17A, 18, 20 and 21 be struck out.
3.Further and alternatively, an order pursuant to section 23B of the Limitations of Actions Act 1958 extending the limitation period for the cause of action to 22 February 2022.
4.Pursuant to rule 9.06 of the Supreme Court (General Civil Procedure) Rules 2015 the first and third defendants cease to be parties to this proceeding.

…

The parties agree that the first and third defendants should be removed as defendants to the proceeding, and orders will be made to that effect. However, not only did Ms Isaac seek to strike out parts or all of the defence, she resisted the defendants’ application to file the proposed amended defence. In effect, Ms Isaac says that the matters pleaded in the proposed amended defence fail to address the deficiencies in the defence which triggered Ms Isaac’s strike-out application.

The paragraphs of the defence targeted by the strike-out application include:

(a) the defendants’ limitation defence (paragraphs 3(d), 6(c), 7, 9, 11, 12 and 13 of the defence);

(b) the defendants’ justification defence (paragraphs 14, 15 and 16 of the defence);

(c) the contextual truth defence (paragraph 17 of the defence);

(d) the defence of fair comment (paragraph 18 of the defence, and, by extension, paragraph 17A of the proposed amended defence);

(e) the qualified privilege defence (paragraph 20 of the defence); and

(f) the innocent dissemination defence (paragraph 21 of the defence).

The application to strike out the innocent dissemination defence (which applies only to the comments) was not pressed at the hearing of the applications.

The defendants’ application was supported by an affidavit of their solicitor, Mr John-Paul Cashen of Thomson Geer Lawyers (‘Thomson Geer’) sworn on 11 October 2022, which referred to certain procedural matters, and exhibited the proposed amended defence and copies of correspondence between the parties relevant to the parties’ applications, which does not need to be recounted here. The proposed amendments to the defence can be categorised as follows:

(a) some minor amendments to paragraphs (viii), (ix), (x), (xiii), (xx), (xxi), (xxiii), (xxv), (xxvi), (xxvii) and (xxx) of the particulars of justification provided by the defendants, which I understand to be largely uncontroversial;[4]
[4]Save to say that Ms Isaac says that these additions and amendments fail to rectify the alleged deficiencies of the defence.

(b) some particulars of justification with respect to the imputation that Ms Isaac is an internet troll, which are largely repetitive of some of the particulars already provided in the defence;

(c) some particulars of justification with respect to the imputation that Ms Isaac acted in concert with Ms Smith to harm Ms Moy’s reputation for personal gain, which are largely repetitive of some of the particulars already provided in the defence;

(d) some particulars to the effect that Ms Isaac’s behaviour was engaged in to derive a business advantage, and was motivated by trade rivalry when ‘trolling’ Ms Moy, which are largely repetitive of some of the particulars already provided in the defence;

(e) a new paragraph 17A which pleaded various alternative meanings of the comments for the purpose of the defence of fair comment at common law; and

(f) in paragraph 18, some additional particulars of what were said to be matters of opinion referable to the alternative meanings pleaded in paragraph 17A of the proposed amended defence, and further particulars of how the defendants say the conduct of Ms Isaac referred to in the segment supported the opinions formed by the authors of the comments.

Ms Isaac relied upon the following evidence in support of her application for an extension of time:

(a) an affidavit sworn by her solicitor, Mr William Mulholland, on 19 September 2022; and

(b) an affidavit sworn by Ms Isaac on 27 September 2022.

In his affidavit, Mr Mulholland deposed, in summary, as follows:

(a) on 6 October 2021 he sent a concerns notice to the ‘Director – A Current Affair, Nine Entertainment Co Ltd’ via an email link appearing on the ACA Facebook page;

(b) he received no response to the concerns notice;

(c) on 4 November 2021 he telephoned the Channel Nine studio in Melbourne, and was told to resend the concerns notice to the Channel Nine legal department, which he did that day by email to the generic email address for the Channel Nine legal department;

(d) on 10 November 2021 he telephoned the Channel Nine legal department and was told someone would call him back to discuss the email he had sent to them on 7 November 2021, but no-one returned his call;

(e) on 17 November 2021 he served the writ and statement of claim in this proceeding (naming the first defendant) upon the Channel Nine legal department by email;

(f) on 22 November 2021 he received an email from a person titled ‘Executive Counsel – Nine’ accepting service of the proceeding on behalf of the first defendant;

(g) on 1 December 2021 Thomson Geer filed and served an unconditional notice of appearance on behalf of the first defendant, and on 14 December 2021, a notice that a jury is required;

(h) on 21 December 2021 Thomson Geer wrote to Mr Mulholland stating, among other things, Ms Isaac had commenced this proceeding against the wrong defendant, and that ‘A Current Affair’ is produced and published by Nine Network;

(i) on 23 December 2021 he wrote to Thomson Geer providing a chronology of events with respect to his attempts to communicate with the Channel Nine Network legal department prior to and after commencing this proceeding;

(j) after discussions and correspondence between him and Mr Cashen from about 17 January 2021, on 31 January 2022 he wrote to Thomson Geer requesting that, among other things, they confirm the name of the legal entity responsible for maintenance and operation of the ACA Facebook page;

(k) on 2 February 2022 he received an email from Thomson Geer as follows:

… Nine Digital Pty Limited operates the Channel Nine website and Nine Network Australia Pty Ltd operates the Current Affair Facebook page.

(l) he was then instructed to draw an amended writ and statement of claim and apply to the Court to join the second and third defendants to the proceeding, and orders were made by consent joining the second and third defendants to the proceeding on 18 February 2022; and

(m) he deposed as follows:

One issue that the defendants raise in their letter of 5 August 2022 is that the plaintiff failed to sue the correct entities and that she ‘guessed’ at who might be the relevant defendant. Nine Entertainment Co. Holdings Limited is a public company which is the parent entity of controlled entities owned by it, an extract from the 2021 Annual Report ‘Group Structure’ shows that the holding company owns over 50 controlled entities including all the named defendants.

In her affidavit sworn on 27 September 2022 in support of her application for an extension of time, Ms Isaac deposed, in summary, as follows:

(a) she first became aware of the first broadcast late in the evening of 3 December 2020, following which she viewed some of the comments on the ACA Facebook page;

(b) she became ‘morbidly obsessed’ with the comments on the ACA Facebook pages, viewing the page at least 100 times a day until the comments were removed in early 2022;

(c) she became anxious and suffered from panic attacks. She was particularly concerned about what she said was an invitation from ACA to its viewers to contact her at her business address, and was unable to sleep without medication;

(d) she referred to the Queensland proceeding and her unsuccessful application to reinstate the Queensland proceeding, and said that she subsequently made a claim against the lawyers representing her in the Queensland proceeding, which was not resolved until September 2021;

(e) she did not feel she had the ‘mental wherewithal’ to pursue Nine Network until September 2021, following which she engaged Mr Mulholland; and

(f) she deposed, in relation to Nine Network’s application to amend its defence, as follows:

I have been shown a proposed amended defence in this proceeding and make the following comments.
(a)At paragraph (viii) of the particulars to paragraph 14 of the proposed amended defence, the defendants allege that shortly prior to September 2016 I either sought to or did in fact commence a wedding planning business. I had been providing hair dressing services for brides in Bali from 2009. From time to time I would liaise with wedding planners, but I never conducted a wedding planning business myself. I did register the domain name balieventcreations.com in about September 2016. I also set up a company under that name. However, nothing came of it and the company never operated. I incorporated a company, Bali Event Creations Pty Ltd in about 2012 to operate my business as a hairstylist and make up artist. Natasha Smith was a friend of mine. I agreed to help her plan her wedding, at her request, but this was not part of an organised business. I was never paid for the services I provided to Natasha.
(b)The defendants claim that I acted in collaboration with Kellie Smith in setting out to harm Tristan Moy. At paragraph (xiv) of the particulars to paragraph 14, the defendants point to Ms Smith being a client of mine and the fact that we ‘liked’ each other’s businesses on Facebook. At the time I estimate that I had approximately 1,200 people who ‘liked’ my Facebook page. Ms Smith had been a client of my hair dressing and make up business for her upcoming wedding, but we were never friends or ever socialised together. We certainly never entered into a conspiracy to harm Tristan Moy. Indeed aside from the posts referred to in the defence we were and are strangers to each other.

The limitation issue and the application for an extension of time[5]

[5]During the course of the hearing, Ms Isaac submitted that the difficulty caused by the late joinder of Nine Network could be overcome by making an order pursuant to r 36.01(4) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’). This section allows an amendment to a pleading to be made to correct the name of a party to the proceeding, even if the effect of the amendment is to substitute another person as a party to the proceeding, with the amendment to take effect from the date the proceeding was commenced (see r 36.01(4) of the Rules). Rule 36.01 of the Rules provides for a far more liberal approach to amendments which have the effect of extending a limitation period than that available under s 23B of the LAA, especially the version in force prior to 1 July 2021. However, I agree that this option is not available to Ms Isaac in this proceeding: first, there was no mistake about the name of the proper defendant, but rather, the identity of the proper defendant, and secondly, Nine Network is already a party to the proceeding by reason of its joinder on 18 February 2022.

In my view, Ms Isaac needs an extension of time with respect to the following claims against Nine Network:

(a) her claims with respect to the first broadcast;

(b) her claims with respect to downloads of the segment on the ACA Facebook page between 3 December 2020 and 18 February 2021;

(c) her claims with respect to downloads of the comments between 3 December 2020 and 18 February 2021; and

(d) her claims with respect to downloads of the segment from 1 July 2021, and posts and downloads of the comments from 1 July 2021.

It is common ground that no extension of time is required for downloads of the segment from the ACA Facebook page and the comments between 18 February 2021 and 30 June 2021, regardless of when the comments were first posted.

The parties disagree as to whether an extension of time is required for Ms Isaac’s claim with respect to the first broadcast, and downloads of the segment and the comments prior to 18 February 2021 (which one might expect would constitute the vast majority of views and downloads). Ms Isaac says that, given that the single publication rule only came into effect on 1 July 2021 (the commencement date for the provisions enacted by the amending act), and the segment and the comments remained online until that date, the limitation period for the first broadcast and the segment and the comments on the ACA Facebook page did not commence until 1 July 2021. Accordingly, no extension of time is required for these publications. Alternatively, Ms Isaac says that, if an extension of time is required, the more liberal test enacted by the amending act applies to her application for an extension of time, given that this proceeding was issued and her application for an extension of time was made after 1 July 2021.

The defendants say that the first broadcast, and each download of the segment and the comments prior to the single publication rule coming into effect gives rise to a separate cause of action, with time commencing to run for each cause of action from the day that the cause of action is complete. Accordingly, Ms Isaac needs an extension of time to bring her claims in respect of the first broadcast and downloads of the segment and the comments prior to 18 February 2021. Further, any application by Ms Isaac for an extension of time is governed by the stricter test imposed by s 23B of the LAA as it stood prior to 1 July 2021, as s 23D(4) of the LAA provides that the more liberal test enacted by the amending act only applies to publications after 1 July 2021.

The parties also disagree as to whether an extension of time is required for downloads of the segment and the comments after 1 July 2021. The defendants say that the effect of the single publication rule is that all publications (that is, downloads) of electronic material after 1 July 2021 are caught by the single publication rule, even if they were first uploaded and downloaded prior to 1 July 2021. By way of illustration, the segment was first uploaded to the ACA Facebook page on 3 December 2020, or shortly thereafter. On the assumption that it was downloaded each day between 3 December 2020 and 18 February 2021, it was ‘published’ each day, and, up until 1 July 2021, a new cause of action was complete each day. However, for each download of the segment after 1 July 2021, the effect of the single publication rule is to, in effect, backdate each download after that date to 3 December 2020 (or soon afterwards), such that an extension of time is required with respect to all downloads of the segment from 1 July 2021, and all comments originally posted prior to 18 February 2021 (but not comments posted after that date).

The defendants accept that the more liberal test for an extension of time enacted by the amending act applies to any claims by Ms Isaac with respect to downloads of the segment and the comments after 1 July 2021 (insofar as the comments were first posted prior to 18 February 2021), but submitted that such an application should not be entertained until Ms Isaac seeks leave to amend her statement of claim to plead the necessary elements of her causes of action with respect to those publications. In particular, Ms Isaac needs to plead, insofar as she makes claims with respect to downloads after 1 July 2021, that those publications have caused, are or likely to cause her serious harm.[6] She has not yet done so, and, the defendants submitted, there is a real doubt as to whether she will be able to establish, in all of the circumstances, that post 1 July 2021 publications would have caused her serious harm over and above any harm caused by the prior publications. Accordingly, the success of any application to amend is not a foregone conclusion.
[6]See s 10A of the Act, introduced by the amending act.

In response, Ms Isaac says that if the defendants’ preferred construction of the single publication rule and the transitional provisions in the amending act is correct, then that would, in effect, give retrospective effect to the single publication rule, which could not be what Parliament had intended. Accordingly, no extension of time is required for downloads of the segment and the comments after 1 July 2021, as Ms Isaac’s claims with respect to those publications have been brought within time.

In order to analyse the impact of the amending act upon the limitation periods applicable to Ms Isaac’s claims in this proceeding, it is necessary to set out the relevant provisions of the amending act and the LAA in full.

Section 5(1AAA) of the LAA provides as follows:

An action for defamation must not be brought after the expiration of 1 year from the date of publication of the matter complained of.

The determination of the date of publication of online material is governed by the statement of the High Court in Dow Jones & Company Inc v Gutnick[7] (‘Gutnick’), where the Court said, in the context of an argument about the place where a cause of action in defamation is complete:

… defamation is to be located at the place where the damage to reputation occurs. Ordinarily, that will be where the material which is alleged to be defamatory is available in comprehensible form … In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on the computer of a person who has used a web browser to pull the material from a web server. It is where that person downloads the material that the damage to reputation may be done …[8]

[7](2002) 210 CLR 575 (‘Gutnick’).

[8]Ibid [44].

Accordingly, since the decision of the High Court in Gutnick,[9] the act of downloading material has been held to constitute ‘publication’ for the purpose of determining both the time and the place of publication of allegedly defamatory matter on the internet. There is no definition of ‘publication’ in the Act, the LAA, or the amending act, and as such, to the extent that ss 5, 23B and 23D of the LAA refer to ‘publications’ (as opposed to ‘first publication’), the common law definition of publication as established in Gutnick[10] remains in force.
[9]Ibid.
[10]Ibid.

Applications for an extension of time to bring a proceeding in defamation are governed by s 23B of the LAA.

Section 23B of the LAA prior to 1 July 2021 provided as follows:

Defamation
(1)A person claiming to have a cause of action for defamation may apply to a court of 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 amending act introduced the single publication rule. Section 5A of the LAA provides that a cause of action against the publisher of defamatory material accrues upon the date of first publication. This provision also provides that the date of first publication, in relation to the publication of electronic material:

… means the day on which the matter was first uploaded for access or sent electronically to a recipient.

Section 5B(2) provides that the single publication rule is relevant only for the purpose of determining from which date a limitation period begins to run, and for no other purpose.

As noted above, the amending act also enacted a more liberal test to govern applications for extensions of the limitation period. Section 23B of the LAA now provides as follows:

Defamation—extension of limitation period
(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)The court may extend the limitation period applicable under section 5(1AAA) to (1AAC) to a period of up to 3 years running from the date of the alleged publication of the matter if the plaintiff satisfies the court that it is just and reasonable to allow an action to proceed.

(3)In determining whether to extend the limitation period, the court is to have regard to all of the circumstances of the case and in particular to—
(a)the length of, and the reasons for, the plaintiff's delay; and
(b)if a reason for the delay was that some or all of the facts relevant to the cause of action became known to the plaintiff after the limitation period expired—
(i)the day on which the facts became known to the plaintiff; and
(ii)the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew whether or not the facts might be capable of giving rise to an action; and

(c)the extent, having regard to the delay, to which relevant evidence is likely to be unavailable or less cogent than if the action had been brought within the limitation period.
…

Section 23D of the LAA includes the transitional provisions for proceedings for defamation following the enactment of the amending act, and provides as follows:

(1)Section 5 as amended by the [amending act] applies in relation to the publication of defamatory matter after the commencement of that amendment.
(2)Subject to subsection (3), section 5A[11] as inserted by the [amending act] applies in relation to the publication of defamatory matter after the commencement of that section.
(3)Section 5A extends to a first publication before the commencement of that section, but only in respect of subsequent publications after the commencement.
(4)Section 23B as amended by the [amending act] applies in relation to the publication of defamatory matter after the commencement of that amendment.

[11]The single publication rule.

I agree with the defendants’ submissions that:

(a) Ms Isaac requires an extension of time to pursue her claims with respect to the first broadcast and downloads of the segment and the comments prior to 18 February 2021, and the more stringent test (that which applied prior to 1 July 2021) applies to her application for an extension of time in respect of those publications; and

(b) Ms Isaac requires an extension of time to pursue her claims with respect to downloads of the segment after 1 July 2021, and downloads of the comments after that time, insofar as the comments were first posted between 3 December 2020 and 18 February 2021. I also agree that the more liberal test for an extension of time applies to publications after 1 July 2021 (which are deemed to have been published prior to 18 February 2021 by the operation of the single publication rule), but that the application for an extension of time should not be heard and determined unless and until Ms Isaac makes an application to amend her statement of claim to include post 1 July 2021 publications.

In relation to (a) above, the submission that Ms Isaac’s claims with respect to the first broadcast have been made within time is untenable. The fact that the segment was later posted to the ACA Facebook page and remained online thereafter does not alter the fact that Ms Isaac’s cause of action with respect to the first broadcast was complete on the occasion of the first broadcast.

In relation to the downloads of the segment and the comments from the ACA Facebook page prior to 18 February 2021, Ms Isaac’s submissions are premised upon a misunderstanding that an action in defamation with respect to online publications is a continuing tort. The practical effect of online publications which are permanently available and regularly and repeatedly downloaded may be akin to that of a continuing tort (such as trespass or nuisance) for the purpose of assessing damage to reputation, but conceptually, defamation is not a continuing tort. Rather, the effect of the reasoning in Gutnick[12] is that, when it comes to online publications, a fresh cause of action arises, and is complete, upon each download of allegedly defamatory material. Accordingly, the fact that the segment remained continuously online from 3 December 2020 does not mean that the limitation period only commences to run once it is removed. Rather, the position is that, insofar as Ms Isaac seeks damages for harm to her reputation by reason of downloads of the segment and the comments prior to 18 February 2021 (the period in which one could expect most of the damage to have been suffered), she needs to seek an extension of time.
[12](2002) 210 CLR 575.

As for the applicable test, the same reasoning applies. Section 23D(4) provides that the new test ‘applies in relation to the publication of defamatory matter after [1 July 2021]’. Given that the act of publication, in relation to online material, means the downloading and comprehension of that material, the new test does not apply to downloads of the segment and the comments prior to 1 July 2021.

Turning now to (b) above, resolution of the issue of whether an extension of time is required with respect to downloads of the segment and downloads of the comments after 1 July 2021 (insofar as the comments were first posted and downloaded prior to 18 February 2021) requires consideration of the terms of s 23D of the LAA. In my view, the language of ss 23D(2) and (3) makes it abundantly clear that the single publication rule applies to downloads of online content after 1 July 2021, even where that material has been available online prior to 1 July 2021, which is precisely this case.

Ms Isaac submitted that the application of the single publication rule to material first available for downloading prior to 1 July 2021 means that the single publication has retrospective effect, which could not have been intended by Parliament. However, there is a number of responses to that proposition, even assuming, for present purposes, that the amending act confers retrospective operation upon the single publication rule. First, there is no global bar upon retrospective legislation. Rather, it is simply a rule of statutory interpretation that, in the absence of a clear statement of parliamentary intention to the effect that a statute does and will have retrospective operation, the courts will presume that it does not. As stated by Dixon CJ in Maxwell v Murphy:[13]

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.[14]

[13](1957) 96 CLR 261.

[14]Ibid, 267.

However, the presumption against retrospectivity does not apply, or at least carries less force, where the statute concerned addresses matters of procedure, rather than substantive rights.[15] Generally, statutes governing limitation periods have been held to be procedural in nature, notwithstanding that their operation may have the practical effect of finally extinguishing substantive rights.[16] Ultimately, however, the question of whether a statute has retrospective operation depends upon the proper construction of the statute in question.
[15]Ibid.
[16]Ibid, 286-291 per Fullagar J. However, see Attorney-General for the State of Victoria v Craig [1958] VR 34, where the Full Court held that the Limitations Act 1955 (Vic) did not operate to alter the limitation period of claims against public authorities based upon facts arising prior to the commencement of the act.

However, even where the presumption against retrospectivity applies to the amending act, that presumption is rebuttable. In my view, any such presumption is rebutted by the plain language of s 23D of the LAA, which was enacted by the amending act. Section 23D(3) provides that s 5A of the LAA, which enacted the single publication rule, and defines the date of first publication of electronic material, extends to a first publication before 1 July 2021, but only in respect of publications after that date. The only possible construction of s 23D(3) is that Parliament intended the single publication rule to have effect with respect to electronic material downloaded after 1 July 2021, but uploaded and available prior to that date.

That Parliament so intended is unsurprising, given the nature of the problem the enactment of the single publication rule was intended to address: namely, the ability of plaintiffs suing with respect to online material to evade the consequences of the limitation period in s 5 of the LAA. The Explanatory Memorandum for the amending act stated as follows:

At general law, publication occurs when a third party downloads a webpage rather than when it is posted by the publisher. As webpages may be downloaded many thousands of times, this means that there is a separate cause of action for each download and the limitation period applicable to each download will vary even though the same matter is involved. This may enable plaintiffs to circumvent the purpose behind the general 1-year limitation period by relying on later downloads of the same matter.
Sections 5A and 5B introduce a “single publication rule” which is intended to address this problem. The principal purpose of the single publication rule is to ensure that the 1-year limitation period is effectual in relation to electronic publications.
The effect of the single publication rule is that the date of the first publication of defamatory matter will be treated as the start date for the limitation period for all publications of the same matter, except if the manner of a subsequent publication is materially different from the first publication.
The limitation period will start running from the date of first publication, which is defined as the day the matter was first uploaded for access or sent electronically to a recipient.[17]

[17]Explanatory Memorandum ‘Justice Legislation Amendment (Supporting Victims and Other Matters) Bill 2020’, Parliament of Victoria, 21 October 2020, 18.

Given the purpose of the single publication rule, it is unsurprising that the rule was enacted with retrospective effect. Had it not been enacted to apply to downloads of material after 1 July 2021 where the material was first uploaded prior to that date, it would take years, if not decades, for the single publication rule to be given its full effect, given the volume and longevity of material on the internet.

Accordingly, I agree with the defendants’ submission that Ms Isaac needs an extension of time insofar as she seeks to claim damages for downloads of the segment and the comments after 1 July 2021. Insofar as the comments were downloaded after 1 July 2021, but were first posted prior to 1 July 2021 but after 18 February 2021, no extension of time is required, but an extension of time is required if the comments were posted prior to 18 February 2021.

Of course, no extension of time is required for comments posted after 1 July 2021, but I agree with the defendants’ further submissions to the effect that, insofar as Ms Isaac seeks to claim damages with respect to the publication of the segment and comments after 1 July 2021, she needs to apply to amend her statement of claim to plead all of the necessary elements of the cause of action applicable to those publications, including that the publications have caused her serious harm. I also agree that, insofar as Ms Isaac needs an extension of time with respect to claims which are now time barred by reason of the limitation issue, the hearing and determination of that application (which will be determined according to the more liberal test imposed by the amending act) should await the outcome of any application for leave to amend. While I accept that, based upon the material in evidence, and my analysis of that evidence later in these reasons that Ms Isaac will not have great difficulties in establishing that it would be just and reasonable for her to proceed, I also accept that such an application should not proceed in the absence of a properly pleaded claim.

Given my findings and conclusions above, I now turn to Ms Isaac’s application for an extension of time with respect to the first broadcast and downloads of the segment and the comments prior to 18 February 2021.

The relevant principles governing applications for extensions of time under s 23B of the LAA were summarised by Beach J in Casley v Australian Broadcasting Corporation,[18] as follows:
[18][2013] VSC 251.

(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.[19]

[19]Ibid [28].

In Brott v FGD Pty Ltd,[20] I commented upon these principles, as follows:

The above formulation has been approved by the Court of Appeal, and referred to in a number of first instance decisions in Victoria and interstate. What is noteworthy for current purposes is that while the types of circumstances which might be taken into account in these applications is not limited, the language of s 23B of the Act means that those circumstances must be quite compelling for the Court to achieve the necessary degree of satisfaction before an extension of time is to be granted.[21]

[20][2018] VSC 182.

[21]Ibid [13].

In Johnston v Holland (No 2),[22] John Dixon J observed that the task before a court when determining whether or not it was not reasonable in the circumstances for a plaintiff to have commenced a proceeding within the limitation period is an evaluative exercise, and does not involve the exercise of a discretion. If the court is satisfied that it was not reasonable for the plaintiff to commence the proceeding within the limitation period, the court must extend the limitation period. The period of the extension granted does involve the exercise of a discretion, which is unfettered, save that of course the discretion must be exercised judicially. The court is not required to extend the limitation period to the end of the three year period from the date the cause of action arose, or even to the date upon which the proceeding was actually commenced.
[22][2017] VSC 597.

The authorities, as noted above, do not prescribe what matters are relevant to the exercise of the discretion. However, relevant factors which immediately spring to mind are the length of the delay (having due regard to the policy considerations underpinning the relatively short limitation period applicable to defamation actions), the explanation for the delay, any prejudice occasioned to the defendant(s) by any delay, and the strength or otherwise of the plaintiff’s claim (in that there would be little point in extending time to permit a plaintiff to bring a hopeless, or a very weak claim).

The requirement for a plaintiff to establish that it was not reasonable for them to commence a proceeding within the twelve month limitation period is an onerous requirement, given the other more generous limitation periods applicable to proceedings for most other civil wrongs, and compared with the more generous test for an extension of time enacted by the amending act. The defendants say that the evidence advanced by the plaintiff fails to clear the high bar imposed by s 23B of the LAA. Further, the defendants submitted that the current case is not analogous to the circumstances in Johnston v Holland (No 2),[23] where the delay in issuing the proceeding was caused by the deliberate concealment of the identity of the proper defendant on the part of the original defendant and the proper defendant, conduct which was found by John Dixon J to be fraudulent and/or unconscionable.
[23][2017] VSC 597.

As earlier indicated, Ms Isaac disputes the necessity to obtain an extension of time, and contends further that, if she needs to do so, the more generous test enacted by the amending act applies to her application. She submitted that it would be just and reasonable to grant the extension of time, on the basis that:

(a) the delay has been relatively short;

(b) the defendants are substantially responsible for the delay; and

(c) there is no prospect of any evidence being unavailable by reason of the delay.

Prior to turning to the question of whether it was not reasonable for the plaintiff to commence this proceeding (or, more accurately, commence this proceeding against the proper defendant, being Nine Network), it is helpful to set out a brief chronology of events, based upon the available evidence.

3 December 2020

Broadcast of the segment. Ms Isaac told of broadcast late that evening.

December 2020 to September 2021

Unsuccessful application made by Ms Isaac to set aside judgment in the Queensland proceeding. Ms Isaac then brings and resolves a claim against her solicitor in the Queensland proceeding, and instructs Mr Mulholland sometime in September 2021.

6 October 2021

Mr Mulholland sends a concerns notice, including a request for the identity of the publisher of ACA and an address for service.

4 November 2021

Mr Mulholland calls the Channel Nine studios, and sends the concerns notice to the Channel Nine legal department.

10 November 2021

Mr Mulholland telephones the Channel Nine legal department. He does not receive a return call.

17 November 2021

Writ and statement of claim filed and sent to the Channel Nine legal department.

22 November 2021

Mr Mulholland received an email from the Executive Counsel, Nine Network, accepting service upon the first defendant.

1 December 2021

Thomson Geer files and serves an unconditional notice of appearance.

3 December 2021

The limitation period for the first broadcast expires.

14 December 2021

Thomson Geer files and serves a jury notice.

21 December 2021

Letter from Thomson Geer informing Mr Mulholland that Ms Isaac had sued the wrong defendant.

23 December 2021

Mr Mulholland writes to Thomson Geer explaining what had occurred after sending the concerns notice.

Week commencing 17 January 2022

Mr Mulholland and Mr Cashen of Thomson Geer speak by telephone, followed by an email from Thomson Geer to Mr Mulholland referring to a proposed amended statement of claim.

21 January 2022

Mr Mulholland writes to Thomson Geer requesting confirmation of the correct legal entity and proposing consent orders.

2 February 2022

Thomson Geer writes to Mr Mulholland identifying second and third defendants as the correct legal entities responsible for the broadcast and the ACA Facebook page.

15 February 2022

Ms Isaac files a summons to join second and third defendants (note the affidavit in support is sworn on 9 February 2022), returnable on 16 February 2022.

16 February 2022

The parties send consent orders to the Court for the joinder of the second and third defendant.

18 February 2022

Orders made for joinder of the second and third defendant.

Accordingly, the delay between the expiry of the limitation period for the first broadcast and the joinder of Nine Network was approximately eleven weeks. The delay between the first broadcast and the service of the concerns notice was approximately ten months. Approximately four and a half months elapsed between the sending of the concerns notice and the joinder of Nine Network, at least part of which (perhaps six weeks) can be accounted for by the summer break and the time required to have the joinder application listed by the Court. If the latter period is excluded (that is, if the correspondence between the solicitors had taken place at a different time of year), the period between the expiry of the limitation period for the first broadcast and the joinder of Nine Network may have been closer to five to six weeks than eleven weeks.

In my view, notwithstanding the delay between the first broadcast and Ms Isaac instructing Mr Mulholland in or around September 2021, it was not reasonable for Ms Isaac to have issued this proceeding against Nine Network before the expiry of the limitation period for the first broadcast on 3 December 2021. In my view, the responsibility for the failure of Ms Isaac to issue this proceeding against Nine Network within time lays largely with the defendants and the Channel Nine legal department.

In particular, I am satisfied that, had it not been for:

(a) the failure of the personnel responsible for the production of ACA and the Channel Nine legal department to respond to the concerns notice;

(b) the failure of the Channel Nine legal department to inform Mr Mulholland on 22 November 2021 that Ms Isaac had sued the wrong defendant; and

(c) the filing and service of an unconditional notice of appearance on 1 December 2021,

Ms Isaac would have issued this proceeding against the correct defendant within time, such that her claims with respect to the first broadcast and downloads of the segment and the comments prior to 18 February 2021 would be able to proceed unimpeded.

What can be gleaned from the chronology above is the following:

(a) there was a lengthy delay (some ten months) between the broadcast of the segment and Ms Isaac instructing lawyers with respect to her claims in this proceeding;

(b) once Mr Mulholland had been instructed, he moved expeditiously to serve a concerns notice, and, after receiving no response, to issue this proceeding against the first defendant;

(c) despite acknowledging service of the writ and statement of claim, the Channel Nine legal department gave Mr Mulholland no indication that Ms Isaac had sued the wrong defendant;

(d) the filing of court documents in the name of the first defendant would have given Mr Mulholland some comfort that Ms Isaac had sued the correct defendant, such that no further inquiries were required;

(e) Thomson Geer only informed Mr Mulholland that Ms Isaac had sued the wrong defendant on 21 December 2021, nearly three weeks after the expiry of the limitation period for the first broadcast;

(f) upon receipt of the letter referred to above, Mr Mulholland promptly asked Thomson Geer for confirmation of the correct defendant;

(g) there was then a hiatus of some weeks during the Christmas/New Year period, following which communications between Mr Mulholland and Thomson Geer resumed; and

(h) while it is not clear from the court file when Mr Mulholland approached the court to list the joinder application, it seems from the date of Mr Mulholland’s affidavit in support (9 February 2022) that it was approximately a week after Thomson Geer confirmed that Nine Network and the third defendant were the correct defendants to the proceeding on 2 February 2022.

Accordingly, while it is fair to say that Ms Isaac sat on her hands for the first ten months after the broadcast (more will be said about this issue later in these reasons), it can also be said that, once instructed, Mr Mulholland acted promptly to progress matters, and was alert to the issue of the identity of the proper defendant from the very start. When his inquiries of ACA and the Channel Nine legal department failed to elicit any response, he issued this proceeding prior to the expiry of the limitation period for the first broadcast, and, once alerted to the fact that Ms Isaac had sued the wrong defendant, acted quite promptly to rectify the situation.

In those circumstances (and given the absence of any prejudice to Nine Network), Ms Isaac would have no difficulty in establishing an entitlement to an extension of time under the new test enacted by the amending act: that is, that it would be just and reasonable to extend time, at least in relation to the first broadcast and the downloads of the segment and the comments prior to 18 February 2021. However, in order to claim damages for the first broadcast, and the downloads of the segment and the comments prior to 18 February 2021, Ms Isaac bears the burden of establishing that it was not reasonable for her to bring this proceeding prior to the expiry of the limitation period for those publications (practically speaking, prior to 3 December 2021).

In my view, Ms Isaac has discharged the burden upon her to establish that it was not reasonable for her to bring this proceeding against Nine Network prior to the expiry of the limitation period for the first broadcast. In reaching that conclusion, it is important to note that Ms Isaac had no real difficulty in issuing this proceeding prior to 3 December 2021: what she failed to do was to issue the proceeding against the correct defendant.

Section 23B(1) of the LAA provides that:

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.
(emphasis added)

Inherent in the reference to a ‘cause of action’ is the notion that a plaintiff in a civil action must have a claim against an identified (and the proper) party for the cause of action to be complete, not just a claim at large. [24] This proposition is consistent with the authorities relied upon by Nine Network in this application to the effect that the joinder of a new defendant to a proceeding outside the limitation period does not preclude that defendant relying upon the limitation period, even if the proceeding to which the defendant is joined was commenced within the limitation period (as was the case here).
[24]Theoretically, it would have been open to Ms Isaac to issue a proceeding against an unnamed defendant, but I do not think that would have been effective in evading the limitation defence, given that she would still have been required to identify the correct defendant within the limitation period (or at least, there appears to be no authority to the contrary).

Accordingly, when evaluating whether it was not reasonable in the circumstances for Ms Isaac to have ‘commenced an action’ with respect to the broadcast by 3 December 2021, the question to be considered is whether it was not reasonable for Ms Isaac to have commenced an action against Nine Network, the proper defendant, by 3 December 2021.

In my view, having regard to all of the circumstances, it was not reasonable for Ms Isaac to have commenced this proceeding against Nine Network prior to 3 December 2021. I make this finding largely on the basis of the failure of ACA and the Channel Nine legal department to provide, at first, any response, and later, any meaningful response, to Mr Mulholland’s requests that they identify the entity within Nine Entertainment Co. Holdings Limited (the defendants’ parent company) responsible for the publication of the broadcast and the operation of the ACA Facebook page.

As stated by Mr Mulholland in his affidavit, the parent company owns over fifty entities, including the defendants to this proceeding, and is responsible for not only one of three major Australian commercial television networks, but also one of the two major newspaper publishers in Australia, and several high profile Australian radio stations. I can readily infer that the entities responsible for these media outlets are not strangers to defamation proceedings.[25] ACA is a long running and well known current affairs program, which has no doubt, given its investigative focus and broad reach, been the subject of defamation actions in the past.
[25]This is not to suggest that the defendants or any of the other entities within the Nine group of companies are particularly prone to making defamatory statements: rather, responding to defamation claims would be a necessary incident of their business, given the nature of their business.

I am prepared to accept that the operator of the general enquiry email address for ACA may have been unfamiliar with the process for dealing with communications such as the concerns notice (although that may be unduly generous to the defendants), or may not have been able to answer the query in the concerns notice as to the identity of the proper defendant to Ms Isaac’s claims. However, the failure of ACA to respond to the concerns notice caused a delay of approximately a month. And then, what happened once Mr Mulholland made contact with, and sent the concerns notice and then the writ and statement of claim to the Channel Nine legal department is quite remarkable, particularly given that Mr Mulholland expressly requested that he be provided with confirmation of the entity responsible for the first broadcast and the ACA Facebook page, information which one might expect would be well known by the Channel Nine legal department.

The defendants sought to distinguish the circumstances in the current application from those in Johnston v Holland (No 2),[26] where it was found that the actual defendant and the proper defendant in that proceeding had conspired to fraudulently conceal the identity of the author and publisher of the offending publications. I accept that there is no basis for finding that Mr Mulholland’s correspondence was deliberately ignored in order to either dissuade Ms Isaac from pursuing her claims or to let the limitation period run out, and that the explanation for this non-responsiveness is most likely more benign than what was found to be the explanation in Johnston v Holland (No 2)[27]. However, even if the explanation for the Channel Nine legal department’s non-responsiveness was ignorance, neglect, or inefficiency in the management of incoming correspondence, from the perspective of Ms Isaac, the position is no different than the position of the plaintiff in Johnson v Holland (No 2),[28] in that despite making direct, prompt and reasonable inquiries of the party who was the sole repository of the relevant information, Ms Isaac was not in a position to identify the correct defendant (and thus advance a complete cause of action) until 2 February 2022.
[26][2017] VSC 597.
[27]Ibid.
[28]Ibid.

Accordingly, the fact that Ms Isaac has not established any fraudulent conduct on the part of the defendants or their associated entities in withholding the identity of the correct defendant until after the expiry of the limitation period for the first broadcast seems to me to be somewhat beside the point, given that the focus of the inquiry under s 23B(2) is the conduct of the plaintiff, not the conduct of the defendant or the prospective defendant. The emphasis upon the fraudulent, or unconscionable conduct of the relevant parties in Johnston v Holland (No 2)[29] may well have been of particular relevance in that case to the exercise of the discretion as to the duration of the extension of time, given that the period of the extension of time sought was somewhat longer than what is being sought in the current application.
[29]Ibid.

It was suggested during the course of the argument that it was not the fault of the defendants that Ms Isaac sued the wrong defendant, and, if Mr Mulholland had any doubts about the identity of the correct defendant (as he did), it would have been open to Ms Isaac to make an application for preliminary discovery in order to identify the correct defendant.

That is correct, as far as it goes. However, the defendants are entities within one of Australia’s largest media organisations, facing a claim with respect to statements that publicise serious allegations against an individual made on one of Australia’s highest rating current affairs programs. While the defendants, as private companies, are not subject to the obligations owed by those required to comply with model litigant guidelines, and the Civil Procedure Act 2010 (Vic) no longer applies to pre-action conduct, a submission to the effect that it is up to a litigant in the position of Ms Isaac to, in effect, sort it all out does not reflect particularly well on the defendants. In those circumstances, and given that Mr Mulholland made repeated inquiries regarding the issue directed at those who should have been in a position to respond promptly with the correct information, it seems to me that it is unreasonable to require Ms Isaac to go to court to obtain the answer to a simple question, capable of a quick and accurate response by a well-resourced major media organisation.

This is not to suggest that those involved have acted wrongfully or unethically. However, the conduct of those involved, regardless of the explanation, means that it does not sit well for the defendants to seek to shut Ms Isaac out of her claims in this proceeding on the basis that she acted unreasonably, in the circumstances where her solicitor’s reasonable inquiries were simply ignored by the makers of the television program concerned and the defendants’ in-house legal experts.

In McMahon v Watkinson[30], Zammit AsJ (as she then was) observed that there is support in the authorities for the proposition that ‘...it would not be reasonable for a plaintiff to commence proceedings within the limitation period where they do not discover the publisher’s identity until after the expiration of that period’.[31] However, her Honour found that the plaintiff in the application before her had not acted promptly and diligently to take steps to identify the proper defendant. In my view, in the circumstances of the current case, the ascertainment of the proper defendant should have been a mere formality, which should have been able to have been addressed within a matter of hours or days rather than weeks or months.
[30][2014] VSC 123.
[31]Ibid [52]. See also Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 [52]; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 [56].

There is a further issue to be considered which is relevant to the question of whether it was not reasonable for Ms Isaac to issue this proceeding against Nine Network by 3 December 2021, being the ten month delay between the first broadcast and Ms Isaac instructing solicitors with respect to her claims in this proceeding. The defendants’ submission was to the effect that it would not be possible to find that it was not reasonable for Ms Isaac to commence proceedings prior to the expiry of the limitation period for the first broadcast because she had done nothing for many months after the first broadcast, and the policy underpinning the twelve month limitation period for defamation actions means that proceedings should be commenced promptly.

I do not cavil with this submission as a matter of general principle. However, the LAA prescribes a twelve month limitation period, not a ’twelve month but preferably sooner’ period. Given that the question of whether it was not reasonable for Ms Isaac to commence a proceeding against Nine Network is an evaluative exercise, and does not involve the exercise of a discretion, it seems to me that policy considerations of the nature relied upon by the defendants are not overwhelmingly determinative of the outcome of the evaluative exercise required to be undertaken in applications of the current kind. Further, as observed by John Dixon J in Johnston v Holland (No 2),[32] ‘the evidence does not need to account for every day or week in the limitation year’.[33]
[32][2017] VSC 597.
[33]Ibid [36].

However, if I am wrong, and the delay prior to serving the concerns notice is a critical issue in determining whether or not it was not reasonable for Ms Isaac to commence the proceeding within time, then it is necessary to turn to Ms Isaac’s evidence regarding her response to the first broadcast and the comments, and their impact upon her mental health. This evidence is a little scant, and is not supported by any other medical evidence, or any documents explaining what happened with the Queensland proceeding, but I accept that Ms Isaac (regardless of her culpability in the whole affair) would have been traumatised and upset by the broadcast and the comments, the latter of which are full of crude abuse, bile and vitriol.[34] I am also prepared to accept that in the wake of the outcome of the Queensland proceeding, the immediate imperative facing Ms Isaac would have been to take all necessary steps to set aside the default judgment in the Queensland proceeding. Further, I do not consider that she can be criticised for serving (or attempting to serve) a concerns notice prior to issuing the proceeding.
[34]In Jamieson v Chiropractic Board of Australia [2011] QCA 56, the Queensland Court of Appeal granted an extension of time on the basis that the appellant’s mental state was such that it was not reasonable for him to commence the proceeding within time. While the Court found that it was not necessary for the applicant to adduce expert psychiatric evidence about his mental health in circumstances where his own evidence was unchallenged, the evidence in that case was more extensive that in the current application.

In summary, I do not consider Ms Isaac’s delay in taking steps to issue the proceeding outweighs the impact of Ms Isaac’s inability to identify the correct defendant. While the ten month delay would have made it difficult for Ms Isaac to bring an application to make an application for preliminary discovery within time, for the reasons discussed earlier in these reasons, I do not consider that it was reasonable to expect her to do so in the circumstances, given that a plaintiff in the position of Ms Isaac would hardly expect that ascertaining the identity of the correct defendant would be a problem that would require a substantial amount of time to deal with, given the profile of ACA.

In any event, I am satisfied that, as things transpired, had ACA and/or the Channel Nine legal department responded within a reasonable period of time and with accurate information to Mr Mulholland’s queries regarding the identity of the proper defendant to Ms Isaac’s claims, then the proceeding would have been issued against the correct defendant within the limitation period for the publication of the first broadcast.

Accordingly, Ms Isaac has satisfied me that it was not reasonable for her to bring this proceeding against Nine Network by 3 December 2021, so I am required to extend the limitation period. Ms Isaac seeks an extension until 22 February 2022, which is presumably the date upon which the amended writ and statement of claim was served upon the defendants (it having been filed on 18 February 2022).

The defendants did not make any submissions as to the appropriate period of any extension of time, with the thrust of their submissions being to the effect that Ms Isaac could not satisfy the Court that it was not reasonable for her to commence this proceeding against Nine Network within the limitation period for the first broadcast.

I consider that it is appropriate to extend the limitation period to 22 February 2022. The period of the extension is not inordinate: it amounts to some two and a half months, and includes the legal vacation. The delay has been explained, and while there was a lengthy period of delay prior to Ms Isaac instructing Mr Mulholland, she and Mr Mulholland acted with expedition after that time. And, while Ms Isaac’s claims in this proceeding are being vigorously defended by Nine Network, it could not be said that they are hopeless, or so weak such as to support a conclusion that extending the limitation period would be futile.

The applications regarding the pleadings

The defendants’ application to file an amended defence and Ms Isaac’s strike out application raises the following issues:

(a) the adequacy of the particulars of justification with respect to the segment provided by the defendants;

(b) whether the defendants are entitled to rely upon a defence of contextual truth with respect to the segment;

(c) whether the defendants are entitled to rely upon a defence of fair comment and/or honest opinion with respect to both the segment and the comments; and

(d) whether the defendants are entitled to rely upon a defence of qualified privilege with respect to the segment on the basis that it constituted a reply to an attack upon Ms Moy by Ms Isaac.

The justification defence

In the proposed amended defence, the defendants make some minor amendments to the particulars of justification already provided, and provide a few additional particulars which are not of great moment for the purpose of the current applications. The main purpose of the proposed amendments is for the defendants to specify with greater precision which of the existing particulars of justification they rely upon in order to establish the truth of each of the particular imputations pleaded in the statement of claim. In effect, the proposed amendments involve a reorganisation of the material already in the defence, rather than a wholesale amendment of the defence.

To recapitulate, Ms Isaac claims that the broadcast conveyed the following defamatory imputations:

(a) Ms Isaac is an internet troll (meaning a person who uses internet carriage services to harass others);

(b) Ms Isaac posted cruel and bad reviews of a trade rival online;

(c) Ms Isaac acted in concert with Kellie Smith to harm Tristan Moy’s reputation for personal gain; and

(d) Ms Isaac is a despicable person who was willing to engage in morally repugnant behaviour to obtain a business advantage.

Ms Isaac contends that the particulars of justification provided by the defendants cannot support the truth of the imputations that Ms Isaac is an internet troll, the truth of the imputation that Ms Isaac colluded with Kellie Smith to harm Ms Moy’s reputation, or the truth of the imputation that Ms Isaac was a trade rival of Ms Moy. As well as contending that the particulars provided are incapable of supporting the truth of the imputations, Ms Isaac relied upon her affidavit, where she deposed that she only has a fleeting acquaintance with Kellie Smith (with Kellie Smith being one of 1,200 of her Facebook friends), and that while she has provided hair and makeup services to bridal parties in Bali, she is not and never has been active in the wedding planning business in Bali.

I am not in a position to form a view as to whether Ms Isaac’s evidence should be accepted for the purposes of the current application. This is not the occasion to resolve disputed factual issues.[35] Further, given that the evidence is untested and goes to a fundamental plank of the defendants’ defence, and given that, strictly speaking, disputes about pleadings should generally be determined on what is contained in the pleading alone, I shall put that evidence to one side for the purpose of the current applications. Rather, the correct approach is to evaluate whether the particulars contained in the pleading are sufficiently precise to enable Ms Isaac to understand the case she has to meet at trial, and are capable of supporting the defendants’ contention that the pleaded imputations, or permissible variants of those imputations, are true, and therefore should be permitted to go forward.
[35]Rush v Nationwide News Pty Ltd [2018] FCA 397 [47].

As for the relevant legal principles, there appears to be no dispute between the parties that:

(a) a plaintiff is entitled to be put on notice of the particulars to be relied upon to support an allegation which is said to be true;

(b) the particulars provided must be expressed with the same degree of precision which might be expected from an indictment;

(c) a defendant seeking to rely upon a defence of justification may ask the tribunal of fact to draw inferences from the surrounding circumstances, but it must be the more probable inference;

(d) when considering whether the particulars provided are capable of justifying the truth of an imputation, regard may be had to the cumulative effect of the particulars; and

(e) particulars of justification which, at their highest, are incapable of proving the truth of the defamatory meaning are liable to be struck out.

Turning first to the imputation that Ms Isaac is an internet troll (defined as being a person who uses online platforms to harass others with the intention of causing them harm), Ms Isaac submitted that the particulars provided are incapable of proving the ‘sting’ of the imputation. The particulars refer to ‘comments or posts’ published by Ms Isaac which were not comments or posts, but instead included communications between Ms Isaac and Ms Moy which had been commenced by Ms Moy, and posts by Ms Isaac on Facebook complaining that Ms Moy had threatened to sue, or had in fact sued Ms Isaac for defamation.

In response, the defendants submitted that Ms Isaac’s definition of what is an internet troll is contentious, and highlights the difficulties associated with using colloquialisms in pleadings of the current kind. The particulars do no more than refer to Ms Isaac’s actions, and those actions support the allegations that Ms Isaac used internet carriage services to harass Ms Moy.

As for the imputation that Ms Isaac acted in concert with Kellie Smith to conduct a campaign against Ms Moy, Ms Isaac says that the fact that Kellie Smith was a client and/or Facebook friend of hers is insufficient to enable a jury to reasonably draw the inference of a conspiracy between them, certainly with the degree of satisfaction required given the gravity of the allegation. The deficiency is significant, as much of the conduct relied upon by the defendants to support their defence of justification is conduct attributable to Kellie Smith alone. Indeed, once the conduct attributed to Kellie Smith is set aside, there is little left which is attributable to Ms Isaac. Further, to the extent that the particulars refer to and rely upon an affidavit sworn by Ms Moy in the Queensland proceeding, the pleading is embarrassing.

The defendants submitted that the particulars provided, read as a whole, are more than sufficient to justify this imputation: indeed, that Ms Isaac and Kellie Smith acted in concert to harass Ms Moy is the only reasonable inference that can be drawn from their conduct. The defendants relied upon the following matters detailed in the particulars:

(a) Ms Isaac and Kellie Smith knew each other;

(b) Kellie Smith’s only links to Ms Moy prior to the campaign she commenced against her were via Ms Isaac;

(c) Kellie Smith and Ms Isaac started attacking Ms Moy online around the same time;

(d) Kellie Smith attacked Ms Moy on Ms Isaac’s Facebook page, and Ms Isaac refused to take down those comments;

(e) Kellie Smith and Ms Isaac relied on many of the same allegations in their respective attacks upon Ms Moy.

Finally, as for the imputation that Ms Isaac is or was a trade rival of Ms Moy, Ms Isaac says that the particulars provided by the defendants are incapable of rationally supporting such an inference. The only particulars provided show that Ms Isaac registered a domain name and an email address which could be perceived as referring to an event planning business, that she was promoting the sale of ‘light up letters’ and ‘wishing wells’, that she sought quotes from florists and other service providers at an unspecified time, and that she provided quotes to a client for a wedding in September 2016. However, the particulars also show that Ms Isaac was offering to put people in contact with other wedding planners, which is inconsistent with Ms Isaac operating a wedding planning business.

The defendants submitted that the fact that Ms Isaac’s wedding planning business was in its infancy, and may never have got off the ground, does not preclude Ms Isaac and Ms Moy from being trade rivals. The particulars provide more than adequate detail of how it is said there was a trade rivalry, and to the extent there is a shortfall, the defendants rely upon Ms Moy’s affidavit in the Queensland proceeding, a copy of which has been provided to Ms Isaac and her solicitors.

In my view, I consider that the particulars of justification identify with sufficient precision the case Nine Network intends to advance at trial, and, if the facts identified in the particulars are proven, those facts are capable of supporting the defence of justification in relation to each of the pleaded imputations.

While I accept that in defamation proceedings the pleadings and particulars are often subject to close scrutiny prior to trial, that does not alter or unduly detract from the general proposition that a party seeking to defend a pleading, or to amend their pleading, only needs to establish that the allegations in the pleading are arguable. In the context of the current application, all the defendants need to establish is that, on the basis of the particulars provided, its justification defences are tenable. They do not need to establish that the defences will be made out at trial. Questions of proof, and the standard of proof applicable to particular allegations are matters for trial.

Turning now to the particular allegations in the defence, I accept that the particulars, if true, could establish the truth of the imputation that Ms Isaac harasses others on the internet, in particular Ms Moy, and that she did so in concert with Kellie Smith. I agree that it would be surprising if the attacks upon Ms Moy by both Ms Isaac and Kellie Smith were purely co-incidental but again, ultimately that is a matter for trial. If the defendants are able to establish at trial (and this may be assisted by discovery and interrogation) that Ms Isaac and Kellie Smith were acting in concert to target Ms Moy online, then the comments and posts made by Kellie Smith become relevant to the defence of justification. Further, to the extent that the defendants rely upon direct communications between Ms Isaac and Ms Moy to support the justification defence, these communications may well be relevant to the question of whether Ms Isaac was motivated by hostility toward Ms Moy.

Ms Isaac submitted that particulars which refer to the alleged impact of Ms Moy of the online publications made by Ms Isaac and Kellie Smith are irrelevant to the question of whether Ms Isaac is in fact an internet troll, being someone who uses an internet carriage service to cause harm to others. Ultimately, the question of whether Ms Isaac knowingly or otherwise caused Ms Moy harm will be a matter for trial, but I am willing to accept for present purposes that a person who criticises others indifferent to or with wilful disregard to the harm which might be caused to them may well fit within the definition of an internet troll, and the harm caused to or suffered by Ms Moy may well be relevant to that allegation.

As for the question of whether Ms Moy and Ms Isaac were trade rivals, I agree that it is unnecessary for the defendants to establish that Ms Isaac operated a wedding planning business at the same scale and stage of development as the business operated by Ms Moy. Ms Isaac could be a trade rival even if her business was in its infancy. Further, the question of whether someone who is in the business of supplying wishing wells, light up letters, bird cages and photo booths for hire could be considered to be involved in the wedding planning business is ultimately a matter for evidence at trial. Ultimately, I suspect that the question of whether Ms Isaac was in fact truly a trade rival of Ms Moy will be fleshed out through the process of discovery and interrogation, but for present purposes, there is sufficient material to enable the allegation to proceed.

Accordingly, the defendants’ justification defence should not be struck out.

Contextual truth

Ms Isaac’s main complaint in relation to this defence is that there is no material difference between the imputations pleaded by Ms Isaac and the contextual meaning pleaded in the proposed amended defence, being that:

… the segment meant that the plaintiff, together with Kellie Smith, trolled Moy online by posting defamatory and hurtful messages about her that were so serious that substantial awards of damages were made against them (‘contextual meaning’).

Nine Network relied upon the particulars of justification to plead that the contextual meaning was substantially true, and that the imputations pleaded by Ms Isaac, if found to have been conveyed by the segment, did not further harm her reputation because of the substantial truth of the contextual meaning.

In Agustin-Bunch v Smith (No 2),[36] John Dixon J summarised the elements of the defence of contextual truth, as follows:
[36][2022] VSC 290.

If the defendant proves that:
(a)the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true and upon which the plaintiff could succeed at trial, notwithstanding that the plaintiff had not in fact pleaded them; and
(b)the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations,

the plaintiff will fail. The need for particular forms of pleading flows from the special position in defamation actions whereby the plaintiff may go outside his pleaded case and yet succeed.[37]

[37]Ibid [33].

The main differences between the contextual meaning and the imputations pleaded by Ms Isaac are as follows:

(a) while the contextual meaning refers to Ms Isaac trolling Ms Moy ‘together with’ Kellie Smith, this is a more neutral term than ‘acted in concert with’;

(b) the contextual meaning makes no reference to any trade rivalry between Ms Moy and Ms Isaac, or Ms Isaac being a despicable person who engages in morally repugnant behaviour; and

(c) the contextual meaning refers to the finding in the Queensland proceeding to the effect that Ms Moy was entitled to substantial damages from both Ms Isaac and Kellie Smith.

It is the outcome of the Queensland proceeding which is relied upon by Nine Network to contend that the imputations pleaded by Ms Isaac would not further harm Ms Isaac’s reputation if the contextual meaning is found to be true. In response, Ms Isaac contends that the outcome of the Queensland proceeding makes no difference to Ms Isaac’s reputation, and that the defendants’ contractual meaning goes no further than ‘pleading back’ the imputations pleaded by Ms Isaac in the statement of claim.

I disagree. It is one thing to say that someone is an internet troll. It is another to say that Ms Moy’s complaints about Ms Isaac’s online activity have been vindicated by a court, and that a court has found that Ms Isaac’s statements on social media caused Ms Moy such significant harm as to justify an award of a six figure sum by way of damages, noting that it was the award of damages against Ms Isaac in the Queensland proceeding which appeared to have triggered the production and broadcast of the segment. Ultimately, the question of whether the contextual meaning, if found to be conveyed by the segment, and if found to be true, ‘swamps’ the impact of the imputations pleaded by Ms Isaac upon her reputation is a matter for trial. But, as a matter of pleading, I accept that it is capable of doing so, and that the contextual imputation pleaded by the defendants is not simply a reformulation of the imputations pleaded in the statement of claim. As submitted by the defendants, the award of substantial damages against Ms Isaac in the Queensland proceeding arguably puts her at the higher end of the spectrum of internet trolls.

Finally, I accept that the contextual meaning pleaded by the defendants does not refer to any trade rivalry between Ms Isaac and Ms Moy, or that Ms Isaac is a despicable person. However, the fact that the defendants’ contextual truth defence may not provide a complete defence to Ms Isaac’s claims does not mean that it should be struck out. Its impact, if successful, upon any liability of the defendant to pay damages to Ms Isaac can only be assessed after a full trial.

Accordingly, the defendants’ contextual truth defence should not be struck out.

Fair comment/honest opinion

Ms Isaac submitted that the defence of fair comment is liable to be struck out because:

(a) it is not open to the defendants to rely upon alternative meanings in a defence of fair comment, as by the time the defence falls for consideration, the meaning of the publication will have already been determined;

(b) what the defendants say are the permissible variants of the imputations pleaded in the statement of claim in themselves incorporate the defence of fair comment, which complicates an already prolix pleading;

(c) the comment must be an expression of opinion and must be based upon proper material, being facts stated in the segment itself;

(d) the particulars relied upon by the defendants to support the defence of fair comment are derived from the particulars provided in support of their justification defence, but those facts are not stated in the segment, and are not notorious, such as the allegation that there was a conspiracy between Ms Isaac and Kellie Smith; and

(e) there is no rational connection between the facts alleged and comments to the effect that Ms Isaac is a psychopath or a sociopath.

In response, the defendants submitted, in summary, as follows:

(a) it is open to the defendants to plead a permissible variant of the imputations (such as what the authors of the comments considered) for the purpose of the defence of fair comment;

(b) there is a rational connection between the facts stated in the segment and the opinions expressed in the segment and the comments, even though the opinions expressed in the comments may be unreasonable or offensive;

(c) each of the matters relied upon for the opinions expressed in the segment and the comments were set out in the segment;

(d) for example, there is a rational connection between the opinion expressed in the segment to the effect that Ms Isaac and Kellie Smith were acting in concert and the facts relied upon for the purpose of the justification defence, which were also referred to in the segment; and

(e) the defendants submitted further as follows:

Similarly, there is nothing irrational about saying that someone acting as the plaintiff did has little or no empathy for others (i.e is a psychopath or sociopath). The opinion expressed may be unreasonable or even offensive. But it is clearly linked to the material in the broadcast and is not irrational and the allegations cannot be struck out.

The leading authority regarding the availability and proper pleading of the defence of fair comment is the decision of the High Court in Channel Seven Adelaide Pty Ltd v Manock[38]. The issues on that appeal included whether the defence of fair comment incorporated a test as to whether the comment was on matter of public interest, along with:

…the distinction between fact and comment; the consequences of the intermingling of fact and comment; the sufficiency of identification of the factual basis for the comment; and the requirement that the defence address the meaning of the defamatory matter pleaded by the plaintiff.[39]

[38](2007) 232 CLR 245.

[39]Ibid [19].

The Court rejected the submission that the elements of the defence of fair comment should be transformed from a defence of fair comment on facts accurately and truly stated to a defence of fair comment on indicated topics of public interest. The Court also restated and upheld the long line of authority to the effect that the facts upon which a comment is based must be expressly stated or referred to in the publication in which the alleged comment is made, or be notorious. The plurality endorsed the following summary of the position:

[I]t is necessary ... to decide whether the hypothetical person could honestly express the commentator's views on the assumption that he knows (a) facts accurately stated in the article, (b) facts referred to in the article and (c) facts that are so well known that they may be described as general knowledge.[40]

[40]Ibid [52].

The Court also held that when relying upon a defence of fair comment, while greater latitude is given to statements of opinion compared with statements of fact, a defendant is bound by the imputation pleaded by the plaintiff, or a permissible variant of that imputation.

As for the statutory defence of honest opinion (s 31 of the Act), a useful summary of the defence and its requirements is to be found in the following passages of the decision of John Dixon J in Agustin-Bunch v Smith (No 2)[41] (citations omitted and emphasis added):
[41][2022] VSC 290.

Section 31 requires proof of three matters concerning the impugned defamatory matter:
(a)       the matter was an expression of opinion rather than a statement of fact;
(b)       the opinion related to a matter of public interest; and
(c)       the opinion was based on proper material.
Section 31(5) provides that an opinion will be based on proper material if it is based on material which satisfies at least one of three alternatives: the material is substantially true; was published on an occasion of absolute or qualified privilege; or was published on an occasion that attracted the protection of a defence under this section or ss 28 or 29 of the Act. This enables the reader considering the defamatory material to judge for themselves that it is a comment and to what extent the opinion expressed in the comment is well founded.
The pleading of the defence must address these elements, while meeting the general principles of pleading. The pleading must identify how the defendant alleges that the defamatory sense of the matter complained of was conveyed as an expression of opinion rather than an assertion of fact, how it will be alleged that the ordinary reasonable reader/viewer would have understood the statement to be an expression of opinion. Next, the pleading must identify how it will be alleged that the opinion related to a matter of public interest. In particular, the basis to allege that the defamatory matter is based on proper material requires the identification of the source and content of the facts and matters constituting the proper material, so as to make clear the allegation that the matter is comment and to identify the scope of the contest about the requirements of s 31(5). That is, whether, and if so, how, the basal material is identified by the ordinary viewer of the publication or is otherwise notorious.
McCallum J observed that the material on which the opinion is based is determined by reference to what the ordinary reasonable reader would have understood from the impugned matter to have been intended by the author to be considered as the basis for his or her comment. This is helpful for the pleader in identifying the material facts that must be pleaded and particularised. In some circumstances, how the opinion has its foundation in the ‘proper material’ may be clear, while in other circumstances the pleader may need to specify some rational connection between the proper material and the opinion, identifying how an honest reader, however biased or prejudiced, might reasonably draw an inference or conclusion from the facts so stated or known. The reference to the proper material may not need to be more specific than an allusion, provided the facts have been presented to the minds of the readers to enable them to assess the opinion for themselves.[42]

[42]Ibid [25]–[29].

The defendants’ pleading of the fair comment defence certainly meets the requirements set out in the extract above, in that the proposed amended defence provides more than enough detail of what matters the defendants seek to rely upon for the purpose of the defence of fair comment, and how the defendants say that the opinions expressed in the segment and the comments were arrived at. Accordingly, as a matter of form, the defendants’ proposed pleading is unimpeachable. Rather, the real issue in the current application is whether the defence is tenable. In particular:

(a) whether the defendants can rely upon permissible variants of the imputations pleaded in the statement of claim;

(b) if so, whether the imputations pleaded at paragraph 17A of the proposed amended defence constituted permissible variants of those imputations;

(c) whether the alleged comments are expressions of opinion;

(d) whether the opinions expressed in the comments are based upon proper material, being facts which are notorious or referred to in the segment;

(e) whether there is a rational connection between the proper material and the opinions in the comments; and

(f) whether the facts pleaded at paragraph 18(iv) of the proposed amended defence should be struck out on the basis that they are neither notorious nor referred to in the segment?

I would make three preliminary observations in relation to the issues outlined above. First, none of the facts relied upon by the defendants are notorious in the sense referred to by the authorities, so that when examining whether any opinions expressed in the segment and the comments are based upon proper material, the Court is confined to the four corners of the segment. Secondly, given the length of the segment, and the fact that much of the segment was taken up with the interview with Kellie Smith and other matters concerning Kellie Smith, for the purpose of the defence of fair comment, the balance of the segment has a lot of work to do. Thirdly, while the defendants rely upon the defence of fair comment with respect to the opinions expressed by the reporters and Ms Moy and her lawyer in the segment, the primary focus of the fair comment defence is the comments.

Turning to the issues identified in paragraph 135 above, there can be no real doubt that the defendants are permitted to rely upon an imputation which is not substantially different than the imputations pleaded in the statement of claim.[43] Further, the question of whether the imputations are substantially different may be considered in the context of the subject publication as a whole, in this case, the segment.[44]
[43]Soultanov v The Age Company Ltd [2009] VSC 145 [44]-[46].
[44]Ibid.

In my view, in the context of the segment as a whole, the variants pleaded at paragraph 17A of the proposed amended defence are permissible variants of the imputations said to have been conveyed by the comments. The segment focuses upon the conduct of Ms Isaac in making certain social media posts, which are read out in the segment. Each of the variants proposed by the defendants merely added the words ‘the plaintiff engaged in acts which the authors considered were acts that a person who was [imputation] might engage in’, that is, Ms Isaac’s conduct. Given the context in which the comments were made, (that is, they were responsive to the matters reported in the segment) I consider that the imputations pleaded in paragraph 17A of the proposed amended defence are permissible variants of the imputations pleaded in the statement of claim.

Further, insofar as the comments are concerned, I have no difficulty in reaching the view that the comments could be held to be expressions of opinion rather than statements of fact, and would be viewed by the ordinary reader as such, particularly given they were posted in a form designed to attract feedback and comment from viewers of the segment. Whether these comments are fair and reasonable, and well informed, is another matter, but that is a matter for trial. Indeed, the very extravagance of some of the language used in the comments would lead a reader to conclude that the comments, or some of them, had ‘the character of an evaluative conclusion’ rather than being statements of fact.[45]
[45]Dutton v Bazzi [2021] FCA 1474 [99].

As for the statements made during the segment itself, most of the statements made by the ACA host and reporter appear to concern factual matters (including the voiceover readings of Ms Isaac’s social media posts) while the statements made by Ms Moy and her lawyer are statements of mixed fact and opinion (which would largely be protected by qualified privilege, as discussed in the next section of these reasons).

As for whether the comments are based upon proper material, being facts referred to in the segment, as previously observed, the segment has a lot of work to do. The key factual matters of relevance referred to in the segment include:

(a) the outcome of the Queensland proceeding;

(b) the voiceover read-outs of Ms Isaac’s social media posts;

(c) that Ms Isaac was establishing her own wedding planning business;

(d) that Ms Isaac and Kellie Smith knew each other, and their attacks on Ms Moy were made in roughly the same time period; and

(e) that the attacks on Ms Moy caused her harm and distress.

Ultimately, whether these facts are true, and sufficient to excuse the defendants from liability with respect to the often abusive material in the comments is a matter for trial. However, for present purposes, I accept that the facts referred to above constitute proper material, at least for the purposes of the pleading of the defence. It follows, accordingly, that there is rational connection between the proper material and the comments. Again, whether the defence will be made out is a matter for trial.

In paragraph 18(iv) of the proposed amended defence, the defendants embark upon a reasonably lengthy explanation of why the matters referred to in the segment support the alternative meanings of the comments relied upon by the defendants. Ms Isaac says that these matters were not referred to in the segment, and therefore cannot be relied upon by the defendants.

I consider that Ms Isaac’s criticisms of this part of the proposed amended defence misunderstands its purpose. It seems to me that, rather than introducing new facts, this part of the pleading seeks to advance the defendants’ case as to why the facts referred to in the segment, if proved to be true, could form the basis of the opinions expressed by the comments. Ultimately, the burden lies upon the defendants to establish that the underlying facts are true, and that there is a rational basis for the opinions expressed in the comments.

Ms Isaac also criticised this part of the proposed amended defence as amounting to an attempt to ‘repurpose’ the particulars of justification for the purpose of the defence of fair comment, which is ordinarily not permissible.[46] However, in my view, whether a defendant is entitled to rely upon particulars already provided for the purpose of a justification defence depends upon whether the matters alleged in those particulars are referred to in the relevant publication (in this case, the segment), and whether the manner in which the defence is pleaded is likely to cause confusion. In the current case, the proposed amended defence makes it clear what matters the defendants intend to rely upon for the purpose of the defence of fair comment, and, while the particulars provided under paragraph 18(iv) of the proposed amended defence elaborate upon how the defendants say there is a rational connection between the facts referred to in the segment and the matters stated in the comments, the facts referred to were set out in the segment, albeit in a much briefer form.
[46]See, for example, the comments of John Dixon J in Augustin-Bunch v Smith (No 2) [2022] VSC 290 [73].

Accordingly, the defence of fair comment is at least tenable, and should not be struck out.

Qualified privilege

It is well settled that a publication which might otherwise be defamatory may be protected by qualified privilege if the publication is really a response to an attack made by the plaintiff upon the person making the defamatory statement, prior to or coincident with the alleged defamatory statement. Further, the defence of qualified privilege extends, in appropriate circumstances, to the media organisation which provided a venue for or otherwise facilitated the reply to the attack.

An archetypal example of where a media organisation may be able to deploy a defence of qualified privilege based upon a ‘reply to an attack’ is where one person (A) criticises another person (B) publicly in a newspaper article or television broadcast or otherwise. If B then gives an interview to a media outlet to refute A’s claims, and in the course of doing so, makes defamatory statements about A, then both B and the media organisation who hosted or published the interview may be able to rely upon the defence of qualified privilege.

Of course, any defence of qualified privilege may be negatived if A is able to establish malice on the part of B, or on the part of the media outlet. Further, the defence of qualified privilege may not be relied upon by the media outlet if it went beyond providing a forum or vehicle for B to provide a reply to A’s attack by making further defamatory statements about A, or providing commentary upon B’s reply which goes further than B does in the reply. In the current case, Ms Isaac says that, in the segment, Nine Network does go further and engages in combat itself against Ms Isaac, and as such, should not be permitted to press its defence of qualified privilege. Ms Isaac submitted that none of the imputations pleaded in the statement of claim are based upon what Ms Moy or her lawyer say in their interviews.

The defendants submitted that the segment went no further than publishing what Ms Isaac had posted online herself, and airing what Ms Moy and her lawyer had to say, and Nine Network went no further than what it was permitted to do by the authorities.

Having reviewed the transcript of the segment annexed to the statement of claim, I accept that it is open to the defendants to rely upon the defence of qualified privilege. I accept that the segment largely includes the words used by Ms Isaac and Kellie Smith in their online publications regarding Ms Moy, and the contributions by Ms Moy and her lawyer may well fall within the ambit of the defence, at least for present purposes.

The position in the current case is to be contrasted with the radio broadcast which was the subject of a decision of the New South Wales Court of Appeal in Radio 2UE Sydney Pty Ltd v Parker.[47] In the broadcast, a prominent talkback radio host, Mr Alan Jones, invited the then president of the NRMA (the New South Wales equivalent of the RACV) onto his program to discuss the pending election of the council of the NRMA. The guest had previously been the subject of criticism by the plaintiff, a council member who was running for re-election to the NRMA council, and the controversy about the election, which had been the subject of a great deal of media attention over the previous weeks.
[47](1992) 29 NSWLR 448.

During the course of the interview, Mr Jones, who was clearly sympathetic to the position of his guest and the NRMA leadership generally, made a number of adverse comments about the plaintiff and his supporters. Both Mr Jones and his guest were found by a jury to be liable for defamation, and the trial judge found that the defence of qualified privilege was not available, by inference rejecting the contention that the radio station was merely providing a forum to enable its guest to respond to the plaintiff’s public criticisms of the NRMA and its council. Their finding was upheld by the Court of Appeal, which stated that ‘… [the guest’s] reply to the criticism may have attracted privilege but not the gratuitous libellous statements made by the radio station’s own journalist’.[48]
[48]Ibid, 460.

Having reviewed the transcript of the segment, it seems to me that, on its face at least, there is an absence of any ‘gratuitously libellous statements’ made by an ACA reporter or presenter which would negative any qualified privilege defence available to Nine Network. Accordingly, the qualified privilege defence should not be struck out.

Conclusion and proposed orders

To sum up, in relation to the limitation issue, I have concluded as follows:

(a) Ms Isaac needs an extension of time to bring her claims with respect to the first broadcast, and downloads of the segment and the comments before 18 February 2021;

(b) Ms Isaac also need an extension of time to bring her claims with respect to downloads of the segment and the comments after July 2021 (insofar as the comments were first posted prior to 18 February 2021);

(c) Ms Isaac should be granted an extension of time until 22 February 2022 pursuant to s 23B of the LAA in respect of the publications referred to in a (a) above; and

(d) the hearing and determination of an application by Ms Isaac to extend time with respect to the publications in (b) above be postponed until after the hearing and determination of any application by her to further amend her statement of claim with respect to those publications.

In relation to the strike-out application, I have concluded that each of the defences advanced by the defendants are tenable, and accordingly, the strike-out application will be dismissed. As a consequence, the defendants should also have leave to file and serve their proposed amended defence.

Draft orders to give effect to these reasons will be circulated to the parties for comment. I shall hear further from the parties as to the final form of the orders and the question of costs.

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SCHEDULE OF PARTIES

S ECI 2021 04299
BETWEEN:
STACEY LEE ISAAC	Plaintiff
- v -
TCN CHANNEL NINE PTY LTD (ACN 001 549 560)	First Defendant
NINE NETWORK AUSTRALIA PTY LTD (ACN 008 685 407)	Second Defendant
NINE DIGITAL PTY LTD (ACN 007 753 461)	Third Defendant

3 December 2020	Broadcast of the segment. Ms Isaac told of broadcast late that evening.
December 2020 to September 2021	Unsuccessful application made by Ms Isaac to set aside judgment in the Queensland proceeding. Ms Isaac then brings and resolves a claim against her solicitor in the Queensland proceeding, and instructs Mr Mulholland sometime in September 2021.
6 October 2021	Mr Mulholland sends a concerns notice, including a request for the identity of the publisher of ACA and an address for service.
4 November 2021	Mr Mulholland calls the Channel Nine studios, and sends the concerns notice to the Channel Nine legal department.
10 November 2021	Mr Mulholland telephones the Channel Nine legal department. He does not receive a return call.
17 November 2021	Writ and statement of claim filed and sent to the Channel Nine legal department.
22 November 2021	Mr Mulholland received an email from the Executive Counsel, Nine Network, accepting service upon the first defendant.
1 December 2021	Thomson Geer files and serves an unconditional notice of appearance.
3 December 2021	The limitation period for the first broadcast expires.
14 December 2021	Thomson Geer files and serves a jury notice.
21 December 2021	Letter from Thomson Geer informing Mr Mulholland that Ms Isaac had sued the wrong defendant.
23 December 2021	Mr Mulholland writes to Thomson Geer explaining what had occurred after sending the concerns notice.
Week commencing 17 January 2022	Mr Mulholland and Mr Cashen of Thomson Geer speak by telephone, followed by an email from Thomson Geer to Mr Mulholland referring to a proposed amended statement of claim.
21 January 2022	Mr Mulholland writes to Thomson Geer requesting confirmation of the correct legal entity and proposing consent orders.
2 February 2022	Thomson Geer writes to Mr Mulholland identifying second and third defendants as the correct legal entities responsible for the broadcast and the ACA Facebook page.
15 February 2022	Ms Isaac files a summons to join second and third defendants (note the affidavit in support is sworn on 9 February 2022), returnable on 16 February 2022.
16 February 2022	The parties send consent orders to the Court for the joinder of the second and third defendant.
18 February 2022	Orders made for joinder of the second and third defendant.

[2023] VSC 70

23 February 2023