Johnston v Holland (No 2)
[2017] VSC 597
•4 October 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2015 06004
| STUART JOHNSTON | Plaintiff |
| v | |
| NICOLA HOLLAND | Defendant |
JUDGE: | JOHN DIXON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12-13 September 2017 |
DATE OF JUDGMENT: | 4 October 2017 |
CASE MAY BE CITED AS: | Johnston v Holland (No 2) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 597 |
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DEFAMATION – Limitation of action – Extension of time application – Appeal from associate judge – Whether plaintiff established that it was not reasonable to have commenced a proceeding within one year of the date of publication – Nature of the court’s discretion as to the period of extension when satisfied that it was not reasonable – Proper construction of enabling section – Limitation of Actions Act 1958 (Vic) ss 5 (1AAA) and 23B.
DEFAMATION – Pleadings – Whether proposed amendment of statement of claim sufficiently alleged that the defendant published the defamatory matter.
LIMITATION OF ACTIONS – Defamation - Extension of time application – Appeal from associate judge – Whether plaintiff established that it was not reasonable to have commenced a proceeding within one year of the date of publication – Nature of the court’s discretion as to the period of extension when satisfied that it was not reasonable – Proper construction of enabling section – Limitation of Actions Act 1958 (Vic) ss 5 (1AAA) and 23B.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Collins QC with Mr A Anderson | M+K Lawyers |
| For the Defendant | Mr J Castelan | HWL Ebsworth Lawyers |
| For Wayne Murray | Mr T Borgeest | Slater & Gordon Ltd |
HIS HONOUR:
Introduction
The plaintiff appeals the judgment of an associate judge refusing an application brought under s 23B of the Limitation of Actions Act 1958 (Vic) (‘the Act’) to extend the limitation period and to permit him to join Wayne Murray as a second defendant to a proceeding and refusing him leave to amend his statement of claim.[1] The background to and facts of this proceeding are sufficiently set out in his Honour’s judgment, and I will not reiterate or add to them except where necessary. They are not presently in dispute.
[1]Johnston v Holland [2017] VSC 448 (‘Reasons’).
The plaintiff is the principal of The Peninsula School in Mount Eliza, Victoria and the defendant is a former director of marketing at the School and a parent of students or former students who attended the school. The plaintiff sues for damages for defamation arising from a series of ‘tweets’ (to approximately 26 followers) and an email (to at least 30 recipients) published on 2 April 2015 to the staff, parents and students of the School. The plaintiff proposes to allege that Murray was the author and publisher of the email.
The plaintiff seeks that:
(a) Wayne Murray be added as the second defendant to the proceeding;
(b) the limitation period for the plaintiff’s cause of action in defamation against Wayne Murray be extended under section 23B(1) of the Act;
(c) the plaintiff be given leave, pursuant to rule 36.01, to file and serve a Further Amended Statement of Claim in the form which is exhibit “ZCS-1” to the Affidavit of Zoe Claire Schwarz sworn 21 February 2017; and
(d) Wayne Murray and the defendant pay the plaintiff’s costs of this application and the plaintiff’s summons dated 21 February 2017.
The plaintiff contended that the primary judge erred in concluding that:
(a) he had not established it was not reasonable to bring proceedings against Murray in respect of the email in the one year period following its publication on 2 April 2015 (“the decision on the first limb of s 23B”);
(b) if the limitation period must be extended in respect of the email, it should not be extended beyond December 2016 (“the decision on the second limb of s 23B”);
(c) the letter from the solicitors for Murray dated 23 July 2016 (exhibit ZCS 8) is subject of without prejudice privilege under s 131 of the Evidence Act 2008 (‘The decision on without prejudice privilege’); and
(d) leave be refused to file and serve the proposed further amended statement of claim against the defendant as it has not sufficiently pleaded co-publication by the defendant of the email (‘The pleading issue’).
It is unnecessary to revisit the decision on without prejudice privilege in order to resolve the appeal.
For the reasons that follow, the plaintiff’s appeal is allowed.
I will deal sequentially with the two distinct issues in this appeal, being the extension of time; and the proposed pleading amendment.
The extension of time
The primary judge found that, in respect of the email, the limitation period, which is one year,[2] expired on 2 April 2016.
[2]Limitations of Actions Act 1958, s 5(1AAA).
Section 23B of the Act states:
23B Defamation
(1)A person claiming to have a cause of action for defamation may apply to a court for an order extending the limitation period for the cause of action.
(2)A court, on an application under subsection (1), must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 5(1AAA) to a period of up to 3 years from the date of the publication.
(3)A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2).
(4)If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.
(5)An order for the extension of a limitation period, and an application for such an order, may be made under this section even though the limitation period has already expired.
The principles that govern the extension of the limitation period under this section are mostly settled, save in one respect that is relevant to the disposition of this application. Those principles were consolidated as a set of propositions by Beach J (as he then was) in Casley v Australian Broadcasting Corporation.[3]Beach J applied the seven propositions identified by Applegarth J in Pingel v Toowoomba Newspapers Pty Ltd.[4]In the present context those seven propositions are:
[3][2013] VSC 251 (‘Casley’), affirmed on appeal in Casleyv Australian Broadcasting Corporation (2013) 39 VR 526.
[4]Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 (‘Pingel’), which propositions are drawn by the judge from Noonan v MacLennan [2010] 2 Qd R 537 (‘Noonan’).
(a) 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) the circumstances that might give rise to an extension are left at large;
(c) 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) 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) the section requires an applicant to show more than 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) 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 ordinarily required for litigants to commence proceedings; and
(g) 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 their legal rights in accordance with that time limit.[5]
[5]Casley [2013] VSC 251, [28].
Focussing on the fourth of those considerations, deriving from s 23B(2), there are two limbs. The first limb is the ‘not reasonable’ test. Has the plaintiff satisfied the court that it was not reasonable for him to have commenced the proceeding within the limitation period? If the first limb is satisfied, the court must extend the limitation period. There is no discretion about the fact of extension if the pre-condition is satisfied.
The primary judge erred when determining that the plaintiff had not satisfied the ‘not reasonable’ test because he failed to deal with the significance of the conduct of the defendant (‘Holland’) and the proposed defendant (‘Murray’) where that conduct caused delay to the plaintiff (‘Johnston’) in identifying whether there was a proper basis to allege that Murray was a publisher of the email. As I will later explain that delaying conduct constituted a concealment of the tort and of the identity of a tortfeasor. It was a material consideration in any evaluative assessment of the reasonableness of Johnston’s failure to commence a proceeding against Murray within the period of 1 year after publication.
Once the court is enabled to extend the limitation period, it has a discretion as to the length of the period of extension (subject to a 3 year maximum). This is the second limb of s 23B. I am persuaded that it is appropriate in the exercise of the court’s discretion that the limitation period be extended to the date when the proceeding will actually be commenced and that the primary judge was in error in concluding otherwise.
There are two questions posed on this appeal relevant to that discretion. The first question is whether the court may, in the proper exercise of its discretion, extend time beyond the period within which it remained not reasonable to have sued. Put another way, is the discretion as to the period of extension constrained by the not reasonable test in the first limb of s 23B(2)? The other question is whether it is material to that discretion that there has been concealment of the identity of the tortfeasor during the relevant period.
The primary judges’ discretion not to extend the limitation period miscarried by reason of his failure to give any, or any proper consideration to the concealing conduct of Holland and Murray, which was a necessary and material consideration in the circumstances. For most of the period between the expiry of the limitation period and the commencement of the application for it to be extended it remained not reasonable for Johnston to have commenced the proceeding because of the concealing conduct of Holland and Murray. Further, the primary judge erred in concluding that the discretion was so constrained and was effectively governed by the continuing operation of the ‘not reasonable’ requirement of the first limb.
Factual findings
The following findings made by the primary judge were not challenged. Johnston learned of the email on 1 May 2015 and considered that Murray was aware of the identity of its author, stated to be a ‘Mr T’.[6] By 18 June 2015, Johnston’s solicitors established that Murray would not co-operate in identifying the author. Murray’s emphatic denial rejected the contention that he ‘owned’ the email account,[7] although it did not distinctly address the issue of whether he was the author or publisher of the email. Johnston’s solicitors pursued other inquiries and on 10 July 2015, Johnston applied for preliminary discovery from Murray.[8] After service of that application, Murray’s solicitors stated that Murray did not know the identity of Mr T and did not receive the 2 April email.[9] Murray’s solicitors suggested that Mr T might be Holland or another person. This response concealed any involvement by Murray in publishing the 2 April email.
[6]Reasons [22].
[7]Reasons [23].
[8]Reasons [24].
[9]Reasons [26].
At this time, Johnston was also seeking to establish whether Holland was the author of the tweets and the email. Misleadingly, Holland said she was not Mr T nor did she know who was. She said she was ‘aware of the Twitter account’ as she followed it for a time.[10] This response also concealed any involvement by Murray in publishing the 2 April email. On 20 September 2016, Holland would respond differently in answers to interrogatories.[11]
[10]Reasons [27].
[11]Reasons [36].
On 4 August 2015, Murray’s solicitors confirming their instructions that Murray at no time sent an email to or received an email from the email account. On 14 August 2015, I made orders for preliminary discovery against Murray and, on inspection of his computer on 28 August 2015, an email from the email account was revealed. Murray also provided an affidavit of documents and inspection of those documents gave Johnston a proper basis to believe that Holland was the author of the tweets and the email, including by reference to another email in which Holland identified herself as Mr T. [12]
[12]Reasons [28]-[29].
Johnston issued this proceeding against Holland on 24 November 2015. Issues then emerged about who had published the 2 April email. Holland’s solicitors denied that she was the publisher, prompting Johnston’s solicitors to immediately request, in specific detail, discovery relating to the description of the publisher of the email. Holland did not respond, but Johnston did not immediately follow through on his stated intention to enforce discovery under r 32.03 or r 32.04. That application might have been made in early February 2016. The first directions day in the Major Torts list was on 12 February 2016.
The primary judge identified the period commencing from this time as relevant to his assessment of the reasonableness of Johnston’s failure to issue proceedings against Murray within time.
When, on 2 February 2016, Holland filed her defence, she admitted that she wrote and uploaded the tweets, but denied publishing the email and, perhaps curiously, pleaded substantive defences to publication of the email. Johnston’s solicitors then, in March, followed up on his request for discovery to which Holland responded that no documents would be provided and the only issue in the proceeding was whether she published the email rather than the identity of the publisher. Soon after, on 6 April 2016, which was just after the expiry of the limitation period, Holland abandoned the substantive defences to publication of the email.
In the time after the expiry of the limitation period, Holland filed a further defence and on 31 May 2015, Johnston renewed his request for discovery of documents relevant to the identity of the publisher of the email and again it can be noted that Holland’s response was not consistent with her later answers to interrogatories.[13] On 7 June 2016, Johnston issued an application for that discovery.
[13]Reasons [34].
On 16 June 2016, T Forrest J granted Johnston’s application and ordered discovery and interrogatories. His Honour recorded that he was satisfied that Johnston was then unable to ascertain the description of the author of the email sufficiently to commence proceedings against the person. What is significant is that the process of enforcing his rights to discovery to overcome the misleading obfuscation of Holland and Murray revealed the information that gave Johnston a proper basis to commence a proceeding against Murray. The primary judge found that Holland’s answers to the interrogatories identified that Murray was the author of the 2 April email signed by Mr T, and that Holland set up the email account and provided the login and password to him. The process of discovery by that application took 3 months and 3 weeks but it was not, correctly I think, suggested that this period was unreasonably long or that Johnston had been dilatory. The dealings between solicitors in the period from 7 June to 27 September provided the explanation for what occurred.
At this point, the primary judge identified the commencement of a second period relevant to his assessment of the application. Two months passed until on 1 December 2016, Johnston’s solicitors stated to Murray’s solicitors his intention to join Murray as a defendant and seeking his consent to an extension of the limitation period. This letter attached a table that set out Murrays’ various representations that were contradicted by evidence that subsequently emerged from the discovery applications. Although this application to extend the limitation period did not issue until 27 February 2017, it was appropriately conceded for reasons that no longer matter that the period from 1 December 2016 until 27 February 2017 does not tell against Johnston on this application.
Reasoning of the primary judge
The primary judge found that Johnston clearly was not aware of a sufficient factual basis to allege that Murray was the publisher of the email until he saw Holland’s answers to interrogatories on 27 September 2016, such that at all times from about 1 May 2015 when he learned of it until the expiry of the limitation period, there was no proper basis to allege that Murray was the publisher of the email. The primary judge found that it would have been entirely speculative for Johnston to allege against Murray that he was the publisher of the email.
However, the primary judge reasoned that there were periods of inactivity by Johnston during that period when he might have taken pre-action steps, as were later taken, to obtain discovery to identify the author of the email to which full weight must be given. His Honour’s reasons identify a single period. He was satisfied, correctly in my view, that on 2 February 2016 Johnston was, quite reasonably, unsure of the basis of Holland’s denial of publication of the email and uncertain as to the circumstances of its actual authorship and publication. Further, Murray having denied publishing it, it would not have been appropriate for Johnston to then seek to join Murray because there was no proper basis to allege that he was the author or publisher of the email.
The primary judge’s refusal to conclude that it was not reasonable for Johnston to have commenced proceedings against Murray before 2 April 2016 was predicated on Johnston’s failure to obtain the information that he later obtained by discovery from Holland in a timely manner. The basis for the application issued on 7 June 2016 was known to Johnston in late 2015.[14] The period of January to March 2016 was the time when there was an unreasonable paucity of activity. Johnston’s conduct during this time was described as desultory when swift action was called for, action that in the circumstances, as was later revealed, would have identified the proper basis to proceed against Murray.
[14]Reasons [65]-[66].
Unreasonable delay was argued by Holland before T Forrest J by the suggestion that the discovery application was futile because the limitation period had expired. T Forrest J concluded that Johnston did not ‘sit on his hands’, his solicitors were proactive and were ‘stonewalled’ by Holland, whose solicitors did not respond for 3 months and then deflected the inquiry. These findings were consistent with concealment.
Why there was error
The appeal from an associate judge is an appeal by way of a rehearing.[15] The appellant must demonstrate legal, factual or discretionary error in the order of the associate judge.[16] The evaluative nature of a decision under the first limb of s 23B(2) admits of a single correct answer, identified by reference to the touchstone of reasonableness mandated by the statutory text, and is not a discretionary decision of the kind subject to the limitations on appellate review expressed in House v The King.[17] In Pingel, Fraser JA stated:
Under s 32A the answer to the question whether it was not reasonable in the circumstances for the plaintiff to have sued within the limitation period determines the result of an application for an extension of time. Noonan v MacLennan & Anor established that the test is an objective one. No element of judicial discretion is involved in the decision whether or not an extension should be granted. (The selection of the period of any extension is discretionary, but that is not relevant in this appeal). The decision does involve an evaluation but that was also true in Warren v Coombes: trial judges are routinely called upon to evaluate the relative weight to be afforded to competing circumstances in the course of deciding whether the defendant failed to act with reasonable care. In relation to the principles governing appellate review it is not easy to identify any significant conceptual difference between that task and the task under s 32A.[18]
[15]Supreme Court (General Civil Procedure) Rules 2015 rr 77.06–77.06.9.
[16]Allesch v Maunz (2000) 203 CLR 172, 180-181 [23].
[17](1936) 55 CLR 499, 504-505.
[18][2010] QCA 175, [34] (citations omitted); see also [153]-[157] (Applegarth J).
Examining the same conduct in the same context as had T Forrest J, the primary judge concluded that there was a significant period during which Johnston sat on his hands and that he was not bound by T Forrest J’s observations. In the following paragraph of his reasons, he referred to ‘considerable gaps’ in the plaintiff’s activity. Johnston had not met the standard of timeous action required. Adopting the language of the cases, swift action by Johnston was needed. When there was no room for delay Johnston’s conduct was desultory. Before I continue to examine the finding of ‘stonewalling’ conduct, I will pause to state why the primary judge’s conclusion that the period of inactivity that he identified was significant or characterised by considerable gaps cannot be preferred to T Forrest J’s conclusion.
The first matter that may be drawn from the chronology is that Johnston was actively seeking to establish how he might vindicate his rights immediately he became aware of the tweets and the email in May 2015. I am far from persuaded that there were any periods of unreasonable inactivity in this endeavour. It is significant that Murray persuaded Johnston not only to switch his focus to Holland as publisher but also to abandon the benefit of an order for oral examination of Murray. When Johnston made a demand on Holland, she did not identify Murray as the author, she began ‘stonewalling’.[19] I will return to the significance of this conduct.
[19]Reasons [57].
Secondly, the period of 3 months and 3 weeks that expired from the issue of the discovery application against Holland until receipt of the answers to interrogatories was not, and is not now, challenged as dilatory or unreasonable. Allow a further week for solicitors to expeditiously draw and file the necessary proceeding because they must now act swiftly. The reasonable time for Johnston to discover a proper basis to allege that Murray published the email was 4 months. Working back from the expiry of the limitation period, the relevant period of ‘significant inactivity’ in proactively enforcing rights to discovery must be prior to 2 December 2015.
As the chronology of events demonstrates, there was no period of significant inactivity prior to that date. The primary judge held that when Johnston issued his writ on 24 November 2015 it was reasonable for him to have concluded on the discovery provided by Murray that Holland published the email. It was not until 15 December 2015 that Holland’s solicitors first stated the position that she would take in her defence that she did not publish the email. It took Johnston’s solicitors a mere 8 days to request discovery relating to that assertion.
The festive season intervened and the first directions hearing when Johnston’s solicitors might reasonably have brought on the discovery application was 12 February 2016.[20] Johnston would not have discovered a proper basis to allege Murray was the publisher of the email within time.
[20]Such applications are issues in the Major Torts directions list and the first available date in 2016 was 12 February.
In any event, Johnston did not ‘sit on his hands’ from 15 December 2015. His solicitors were trying to understand Holland’s prevarication about her defence and its implications for the conclusion they had reached that there was a proper basis to allege that Holland, and not Murray, published the email. It was not until after the limitation period expired that she abandoned substantive defences to publication of the email and stood on her denial of publication. That amendment caused Johnston to return his focus to obtaining discovery from Holland about publication of the email.
Notwithstanding that the primary judge identified the principle that the evidence does not need to account for every day or week in the limitation year,[21] there is much force in Johnston’s submission that such an analysis is precisely what his Honour undertook.
[21]Reasons [17(e)].
Thirdly, the primary judge took no account of the period of 3 months between Johnston’s initial discovery of the allegedly defamatory publication of the email on 1 May 2015 followed by his letter of demand on 15 June 2015 and Murray’s affidavit of documents on 4 September followed by the issue of proceedings against Holland alone on 25 November 2015. It cannot be said that Johnston was acting unreasonably during this period, yet the primary judge failed to identify why Johnston did not discover the facts about publication of the email during this period.
To appreciate the significance of this failure, two observations are important. Johnston alleges in his pleadings that the tortfeasor disguised his or her identity by the use of the pseudonyms ‘Tan Twat’ and ‘Mr T’ and social media accounts disguised by using the names ‘@tanpersonsays’ and ‘[email protected]’. Johnston proposes to allege Murray defamed him in the email in a manner that concealed his identity. Johnston also alleged that Holland and Murray were complicit in a campaign against him of which the publications were part. One critical aspect of the campaign allegation is the use of these related pseudonyms in both the email and the tweets. These were open acts of concealment of the identity of the tortfeasor at the time of commission of the tort.
Murray then continued to conceal his identity and his tort by first, failing to respond to the plaintiff’s enquiries, and secondly, by then responding in a misleading way both personally and by his solicitors. The primary judge found that his responses may have been strictly accurate but were dissembling.[22] Murray misled Johnston into believing that Mr T, the author of the email, was not a pseudonym that he had used. Either Holland’s answers to interrogatories were seriously erroneous, or Murray had misinformed or misled his former solicitors. Johnston was persuaded to abandon an order that had been made for oral examination because it was not necessary as Holland had been identified as Mr T and as the publisher of the defamatory material. In so doing, Johnston acted to his detriment.
[22]Reasons [50].
Yet the primary judge accepted Murray’s submission that Johnston’s prosecution of his claim was desultory and his delay was not adequately explained.[23] In so concluding, the primary judge was in error. He was obliged in determining whether it was not unreasonable for Johnston not to have commenced his proceeding against Murray by 2 April 2016 to take into account all of the circumstances. By analogy to the principles of fraudulent concealment that I will come to, Murray’s concealing conduct was material and deserving of considerable weight. It provided an explanation for the period from publication until the answers to interrogatories. Murray could not be heard to contend that Johnston unreasonably delayed granting him the benefit of a statutory limitation period when his concealing activities caused that delay. Such conduct was, in equity, unconscionable.
[23]Reasons [71], [78].
Holland’s stonewalling conduct and her prevarication about her defence to the allegation that she published the email was also misleading in the relevant sense. Johnston was required to focus on understanding the defence being taken by Holland who in the first months of 2016 up to the expiry of the limitation period was presenting a variable response to Johnston’s allegations with two amended defences and what must now be seen, in the light of her answers to interrogatories, as an evasive response to solicitor’s correspondence concerning discovery of the publication of the email. Holland’s actions also contributed to Johnston’s pause in seeking to identify Murray’s precise role in publication. This coincidence of purpose between Holland and Murray played out against the backdrop of Johnston’s allegations that Holland and Murray were, at the times of publication, conducting a campaign against him.
Given the primary judge’s unchallenged conclusion that it was Holland’s answers to interrogatories that mark the point when Johnston had a sufficient and proper basis to allege that Murray published the email, it was not reasonable for Johnston to have commenced proceedings against Murray when each of Murray and Holland had concealed, or constructively concealed, Murray’s involvement[24] or contended that the issue was irrelevant.[25] Johnston did not accept these responses but they did cause him to pause in his pursuit of the discovery that would eventually arm him with a proper basis to make allegations that Murray published the email.
[24]Reasons [49]-[60].
[25]Reason [34].
The test posed by s 23B is objective. The issue to be evaluated is fact sensitive.[26] The primary judge was objectively satisfied that Holland’s answers to interrogatories marked the point. Accepting that the burden was on Johnston to identify circumstances that make it not reasonable to have commenced a proceeding within one year, the primary judge was objectively satisfied that it was not reasonable for Johnston to have commenced a proceeding against Murray.[27] There can be no doubt as to the judge’s satisfaction. It was expressed on three occasions.[28]
[26]Carey v ABC (2012) 84 NSWLR 90, 102 [61].
[27]Civil Procedure Act 2010, s 18.
[28]Reasons [47]-[48], [66], [76].
Once so satisfied, the primary judge was obliged by the language of the section to extend the limitation period. However, the primary judge embarked on a speculative analysis of what might have happened had different steps been taken during a small part of the limitation period. It was permissible for the primary judge to consider what a plaintiff could reasonably have done, but did not do, in all of the circumstances that might demonstrate that it was reasonable to have sued within time, but the flaw in the analysis was that it was too confined. By such reasoning in respect of a 2 month period, the primary judge concluded that it was not reasonable for Johnston not to have commenced a proceeding against Murray within time because it was possible that he would, with reasonable diligence, have identified the basis to sue Murray that ultimately emerged.
Even assuming, contrary to what I have stated, that the window of two months in early 2016 was a sufficient opportunity for Johnston to have exercised that reasonable diligence, that analysis was an exploration of what was possible in that window rather than what was reasonable during the whole of the limitation period. By identification of the possibilities that may have been revealed by alternative hypothetical conduct, the primary judge asked the wrong question. That is not to say that, in a given case, inaction on the part of the plaintiff when action was required might not lead to a conclusion that was unfavorable to the plaintiff, but, as I have explained, this was not a case where the plaintiff had been desultory or inactive.
Once the question is properly focused on the conduct of the parties during the course of the limitation period when assessing whether it was not reasonable in the circumstances to have commenced a proceeding within one year from the date of the publication, it was erroneous for the judge not to consider the material circumstances of concealment and misleading conduct by Murray and Holland that he had found to have occurred. That conduct had deflected Johnston from the proper inquiry about Murray’s involvement in the publication of the email at an earlier point when time was running. According proper weight to such circumstances compels the conclusion that it was not reasonable to have commenced a proceeding against Murray on or before 2 April 2016.
The second consequence of the conduct of Murray was that Johnston acted to his detriment in foregoing the benefit of an order for Murray’s oral examination. Johnston was thereby delayed in identifying how to put his case against Murray until Holland answered interrogatories. Forced onto an alternate track of pursuing Holland as publisher of the email, Johnston was then further delayed by her conduct. During this delay, the limitation period expired. Given the contribution of each of Murray and Holland to Johnston’s failure to commence a proceeding against Murray within time and in the context of the broader allegations of complicity between Murray and Holland in the conduct of a campaign, it was unconscionable for Murray to contend that it was reasonable for Johnston to have sued him on or before 2 April 2016 and in that way to benefit from his concealment of his tortious conduct. That is a further reason compelling the conclusion that Johnston satisfied the first limb of s 23B(2) and was entitled to an extension of time.
Support, but not authority, for this reasoning is found in Levy v Watt.[29] The respondents claimed that the appellant had converted a valuable painting, that the appellant had received as a gift unaware that it had been stolen some years previously. The case turned on s 27 of the Act that provides for the postponement of limitation periods in cases of fraud, fraudulent concealment or mistake. In issue on the appeal was whether s 27(b) operated to postpone the commencement of the limitation period as the right of action (in conversion) had been concealed by the fraud of the original thief through whom the appellant was claiming the painting.
[29](2014) 308 ALR 748.
Santamaria JA, with whom the other members of the court agreed, analysed the history of the administration of statutes of limitation by courts of equity. His Honour concluded that equitable principle, which he explained in some detail in his reasons, informed the proper approach to the interpretation of s 27(b). Santamaria JA cited with approval the conclusion expressed by Brightman J in in Bartlett v Barclays Bank Trust Co Ltd (No 1), after canvassing the authorities:
"Fraud", in the context of section 26(b), does not mean common law fraud or deceit. But it does seem to envisage conduct which, if not fraudulent in the more usual sense, is unconscionable having regard to the relationship between the parties: see Kitchen v Royal Air Force Association. "Fraud" is used in the equitable sense to denote conduct by the defendant or his agent such that it would be against conscience for him to avail himself of the lapse of time.[30]
[30][1980] Ch 515, 537 (citation omitted).
In the course of argument, reference was made to the operation of s 5(1AAA) and s 23B of the Act in the context of a submission that the primary judge had decided a cause of action does not accrue in tort until the identity of the tortfeasor is known. Of those sections, Santamaria JA noted:
In my opinion, s 23B is sui generis. It is not affected by other provisions in the Act; nor, in its turn, does it affect them. Section 23B of the Act makes it clear that the only circumstances in which time can be extended to file a claim for defamation is under the regime set out in s 23B. Section 27 has no application when assessing whether an extension of time in defamation should be granted by the court. [31]
[31](2014) 308 ALR 748, 775 [100].
His Honour further observed that the learning on s 26(b) with respect to fraudulent concealment may be a consideration relevant analogously to the exercise of the discretion in s 23B of the Act that he described as a discretion in the court to extend the s 5(1AAA) limitation period to a period of up to 3 years from the date of publication. In my view, the analogous application of the principle of fraudulent concealment is that it is a material circumstance when determining whether it was not reasonable for the plaintiff to have commenced a proceeding because the identity of the publisher was unknown and a consideration relevant to the exercise of the discretion in s 23B as to the period of the extension to be allowed.
Being satisfied that the primary judge was in error when he determined that there would be no extension of the limitation period, the appeal will be allowed and the decision below set aside. I must now determine the proper period of the extension of the limitation period. The primary judge stated that it would not be a proper exercise of discretion to extend the limitation period beyond the time within which it remained unreasonable for the plaintiff to have commenced proceedings against Murray should not be extended. Ordinarily, his Honour stated, the discretion should be exercised to extend time to the point at which it ceased to be ‘not reasonable’ in the circumstances for the plaintiff to have commenced an action. His Honour considered that time was December 2016.
It follows from my reasons for concluding that Johnston has established that it was not reasonable for him to have sued Murray before the limitation period expired that the limitation period should be extended. It remained not reasonable for Johnston to have commenced a proceeding because the concealing conduct of Holland and Murray was continuing at least until 27 September 2016. However, I consider that the primary judge was wrong to apply as a limitation governing the discretion to be exercised when determining the extended period of limitation whether it remained unreasonable for the plaintiff to have commenced proceedings against Murray. Such a constraint is not justified, neither by the statute nor by the cases.
The text of s 23B(2) does not admit the qualification on the discretion applied by the primary judge. The task of statutory construction begins and ends with a consideration of the text itself, understood according to its plain or natural meaning, unless some ambiguity exists, read in light of its context and purpose.[32] Section 35 of the Interpretation of Legislation Act1984 (Vic) provides that, in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object.[33] In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT), Hayne, Heydon, Crennan and Kiefel JJ commented as follows:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[34]
[32]Stingel v Clark (2006) 226 CLR 442, 458 (Gleeson CJ, Callinan, Heydon and Crennan JJ), 462 (Gummow J), 481 (Kirby J); Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 228 CLR 168, 197 (Kirby J).
[33]Mills v Meeking (1990) 169 CLR 214, 235 (Dawson J).
[34](2009) 239 CLR 27, 46-47 [47] (‘Alcan’).
More recently, on this subject, in Commissioner of Taxation v Consolidated Media Holdings Ltd,[35] after considering Alcan, and repeating that: ‘[t]his Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’, the joint judgment continued:
So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.[36]
[35](2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ) (citations omitted).
[36]Ibid.
The earlier cases on s 23B and its equivalents within the national defamation law scheme have clearly identified the two limbs of the section that I have noted. The power to extend the limitation period, the first limb, is not discretionary, it is evaluative and that evaluation is to the standard expressed in the section, what I have referred to as the ‘not reasonable’ test. Once the test is satisfied, the court ‘must’ extend the limitation period but that is not a statutory entitlement to a limitation period of 3 years. The words ‘to a period of up to 3 years from the date of publication’ give the court a discretion as to the period of the extension. Although that discretion is limited to an extension of no more than 2 years, it is otherwise on the statutory text a general discretion, unconstrained except by the obligation that it be exercised judicially.
Neither the statutory text nor the general purpose and policy of the provision direct or demand any further constraint on that discretion. To conclude otherwise requires impermissible statutory construction. Either words must be read into the text of the section or the evaluative test that governs an entitlement to an extension be permitted to control the discretion by conflating the two limbs of the section against the plain and natural meaning of the words used.
Different legislative text and consequence is evident within the Act. For example, in the case of disability, the commencement of the limitation period is deferred to the date when the plaintiff ceased to be under a disability.[37] Parliament might have, but did not, use language that adopted that approach for defamation proceedings so that once it ceased to be not reasonable for the plaintiff to have commenced an action, the limitation period of 1 year commenced to run. Alternatively, in actions for personal injury, the court has a discretion, if it decides that it is just and reasonable to do so, to extend the limitation period for such period as it determines.[38] That discretion is to be exercised by having regard to all the circumstances of the case including, without derogation, the matters specified in the section.[39] That statutory provision was inserted into the Act in 1972.
[37]Limitation of Actions Act, s 23. See also s 27 in respect of the postponement of the limitation period in cases of fraud or mistake.
[38]Limitation of Actions Act, s 23A(2).
[39]Limitation of Actions Act, s 23A(3).
An unconstrained general discretion as is found in the second limb of s 23B(2) was no stranger to the law of limitation of actions, which would have been well understood in 2005 when the provision was enacted. To so conclude is not to suggest that all of the circumstances of the case relevant to the exercise of the discretion might not include whether it had, and for how long, become reasonable for the plaintiff to have commenced the proceeding.
In Riske v Oxley Insurance Brokers Pty Ltd,[40] McCallum J concluded that there was no warrant in the language of the section for concluding that the discretion as to the term of the extension is constrained by the ‘not reasonable’ test. However, on either of the competing interpretations of the section, her Honour was satisfied that the plaintiff was entitled to an extension of the limitation period to the date of the further amended statement of claim.
[40][2014] NSWSC 1611 (‘Riske’).
To explain the origins of the interpretation of the section that constrained the discretion, the reasons of Chesterman JA in Noonan,[41] from where the test applied by the primary judge was derived, must be carefully evaluated and properly understood. Although identified as the source of that interpretation, Chesterman JA’s reasons do not authoritatively establish that interpretation. In that case, the Queensland Court of Appeal concluded that the precondition for extension under the equivalent provision to s 23B[42] was not open on the evidence and the court could not order an extension of the limitation period. It was unnecessary to consider the exercise of the discretion as to the length of any extension and that issue was not discussed by the other members of the court.
[41][2010] 2 Qd R 537.
[42]Defamation Act2005 (Qld) s 32A.
Chesterman JA continued however, stating obiter:
Even if one assumes, contrary to my opinion, that it would have been unreasonable for the respondent to commence proceedings while the university’s grievance procedures were being pursued the conclusion would not assist the respondent. He lost, on that ground, six months. Assuming that the court was satisfied of what s 32A(2) required, time had to be extended. The length of the extension was a matter for discretion. It would not have been a proper exercise of discretion to extend time beyond the period within which it was thought unreasonable to have sued. In this case that would have produced an extension of time of six months, to October 2008. Such an extension would not assist the respondent who did not commence proceedings until a further eight months had elapsed.[43]
[43]Noonan [2010] 2 Qd R 537, 550 [66].
Chesterman JA was not reasoning that it would be an improper exercise of the discretion to extend the limitation period for longer than the period during which it would not have been reasonable to commence proceedings. Consistently with a general discretion subject to a maximum of 3 years, his Honour was observing that in the circumstances of that case an extension of no more than six months beyond the expiration of the limitation period, the appropriate extension in the circumstances - being the time that the plaintiff was delayed by the grievance procedure - would not have assisted the plaintiff.
Appellate review of a decision to extend the limitation period came before the Queensland Court of Appeal again in Pingel.[44] The appeal was allowed and the application dismissed (by majority) on the basis that there was no sufficient basis in the evidence for concluding that it was not reasonable for the respondent to institute proceedings. The decision has become notable as, in dissent, Applegarth J identified a convenient summary of the seven propositions to be drawn from Noonan. Applegarth J did not consider the nature of the discretion as to the period of any extension granted by the court. He would have dismissed the appeal against the primary judge’s decision to extend the period by about 4 months.
[44][2010] QCA 175.
The Queensland Court of Appeal again considered the Queensland equivalent of s 23B(2) in Jamieson v Chiropractic Board of Australia,[45] allowing an appeal against the primary judge’s refusal to extend the limitation period. White JA, with the other members of the court agreeing, was satisfied that the plaintiff had demonstrated, by reference to unchallenged evidence about his mental state and other circumstances, that it was not reasonable to have commenced proceedings within the limitation period. Relevantly there were two publications and without analysis of any distinction between them or of the period during which it would not have been reasonable to commence proceedings, the court extended the limitation period to the date on which the proceeding was issued stating that there was no prejudice to the respondent and it was in the interests of justice that the applicant be given an extension of time.
[45][2011] QCA 56.
As I have noted, Beach J in Casley agreed with Applegarth J’s analysis in Pingel of Noonan. He modified and re-expressed the propositions identified to apply to s 23B of the Act. Those propositions, relied on by the primary judge, are set out earlier in these reasons. In the circumstances of the case before him, Beach J refused the plaintiff an extension of the limitation period. However, his Honour continued, obiter:
For the sake of completeness I should say that even if I had been satisfied that it was not reasonable for the plaintiff to have commenced this proceeding within one year from the date of the broadcast, as a matter of discretion, I would not have extended the time limit to 27 March 2013. As I have said above, defamation proceedings must be taken in a timely fashion and without undue delay. There is no real excuse offered by the plaintiff for the delay between 6 July 2011 (when ACMA’s final report was published) and 27 March 2013. All that the plaintiff appears to have done during that time is to foreshadow an intention to make review applications which he was advised were not open to him.[46]
[46]Calsey [2013] VSC 251, [38].
Beach J rejected a submission that if the court is satisfied that it was not reasonable to have commenced the proceeding within one year, then the court was bound to extend the period until the date the proceeding was actually commenced:
The submission is contrary to the authorities to which I have previously referred. Further, acceptance of the plaintiff’s submission would mean that once a plaintiff established that it was not reasonable to commence a defamation proceeding within the one year limitation period, a further limitation period of an additional two years would be granted irrespective of the reasonableness or otherwise of not taking a proceeding during any part of that period.
If, contrary to the finding set out above, the plaintiff had established that it was not reasonable to commence his proceeding within the one year limitation period, in my view, a proper exercise of discretion would have been to extend the limitation period for twelve months from 6 July 2011. However, as I have said above, the plaintiff has failed to establish that it was not reasonable to commence his proceeding within the one year limitation period.[47]
[47]Ibid [40]-[41].
These observations, plainly prompted by the submission, fall short of endorsing the notion that the discretion as to the period of the extension is other than a general discretion and, more particularly, is a discretion that is constrained by the notion that it would be an improper exercise of the discretion to extend the limitation period for longer than the period during which it would not have been reasonable to commence proceedings. In that case there was unexplained delay of approximately 21 months when the plaintiff did nothing but foreshadow a course that he knew was not open to him, which strongly suggests that Beach J contemplated a conventional discretionary analysis for extension of the limitation period. Beach J footnoted the Queensland Court of Appeal decisions discussed above but did not isolate the obiter of Chesterman JA in Noonan.
Before the Court of Appeal, in Casley v ABC,[48] the applicant renewed the submission that once the test under s 23B was satisfied, the court must extend the limitation period and that there was no discretion as to the length of the extension. Hansen JA, with Robson AJA agreeing, when refusing leave to appeal, cited Noonan as authority for the accepted construction of s 23B that the length of the extension is a matter for discretion. His Honour said that the accepted construction was not plainly wrong and should not be departed from:
It would be a curious result, and one seemingly not consistent with the intention of the uniform law, that on the test in s 23B(2) being satisfied, the limitation period be extended for the whole three year period. That would be open on the applicant’s submission, even if such an extension went beyond the time within which, acting reasonably, a proceeding might be commenced. That would seem to deny operation to the words “up to”, and could well operate to allow a potential plaintiff a period of time within which to commence a defamation proceeding that was greater than the limitation period of one year.[49]
[48](2013) 39 VR 526.
[49]Ibid 541-542 [73].
Hansen JA concluded that, if and to the extent that the applicant challenged the actual exercise of discretion as to the period of extension, Beach J’s decision as to that was open and relevant error was not shown. The exercise of discretion was correct. In concluding that Casley stood for the proposition that it would not be a proper exercise of discretion to extend time beyond the period within which it was thought unreasonable to have sued, the primary judge misunderstood Hansen JA's reasoning and was in error.
For these reasons, there is no decision of an intermediate appellate court that has determined the proper construction of s 23B(2) of the Act to require that the discretion as to the period of any extension of the limitation period is constrained in the manner in which the primary judge proceeded. The principle stated by the High Court that intermediate appellate courts should not depart from the decision of an intermediate appellate court in another jurisdiction on the interpretation of uniform national legislation unless convinced that that interpretation is plainly wrong is not engaged.[50] I am not bound by the obiter observations made in the cases to which I have referred and neither was the primary judge. Further, those observations are in conflict with the plain meaning of the section construed in accordance with settled High Court authority.
[50]Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89, 151-152 [135]; Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, 492.
I note that the opposite conclusion was reached in Barrett v TCN Channel Nine Pty Ltd,[51] although, again, the judge concluded that the outcome would have been the same whether the court applied Noonan or Riske. Nonetheless, for the reasons I have stated I cannot, with respect, accept the analysis in Barrett.[52]
[51][2016] NSWSC 1663 (‘Barrett’).
[52]Ibid particularly [41].
I have already stated my reasons for concluding that Johnston and his solicitors acted reasonably in the period to the issue of the application for discovery against Holland. The period from that time to Holland’s answers to interrogatories was not challenged as unreasonable and, further, issue was not taken with the period after Murray was put on notice of this application on 1 December 2016 when the amended statement of claim was sent to him and his advisers with a request that he consent to an extension of time and to the proceeding being commenced.
All that remained as the basis for the primary judge’s finding was the period between 27 September 2016 and 1 December 2016. On the evidence before the primary judge, Johnston’s conduct was explained and his conduct was reasonable. The matter was in the hands of his legal advisers. It would not be a proper exercise of the discretion not to extend time because it might be considered possible for Johnston to have issued prior to 1 December 2016.
I have also explained why the evidence before the primary judge supported a finding of fraudulent concealment in equity of the identity of the publisher of the email continuing after the commission of the tort through until Holland swore her answers to interrogatories. That Murray seeks to take advantage of that concealment of a proper basis to allege his role as a publisher of the email for approximately 17 months after publication is a material circumstance deserving of significant weight in considering the discretion to be exercised. It cannot be overlooked or outweighed, by confining the analysis to Johnston’s conduct, or more specifically that of his solicitors, in a period of two months. During that two months, the primary judge considered Johnston’s conduct to be desultory and inadequately explained because it was, his Honour concluded, possible to have considered and formulated a claim against Murray. Even assuming that finding to be appropriate, and it is not, it is the whole period from the first discovery of the publication of email that was relevant. Overwhelmingly, during the relevant period, Johnston was actively seeking to avoid the consequences of the concealment of the proper basis for a claim.
There was no evidence of relevant prejudice to Murray if the limitation period was extended. Having regard to the overall conduct of Johnston and his legal advisers in the face of the obstructive concealment of the identity of the publisher of the email, significant prejudice to Murray would be needed to persuade me that it would not be in the interests of justice to extend the limitation period.
In all the circumstances, the proper period of extension was 12 months from 27 September 2016. The benefit of an order to that effect has been lost by reason of the appeal and I will extend the limitation period to a date 10 days after final orders are made on this application.
The proposed pleading amendment
By the time of the appeal hearing, the issue in contest about the pleading amendment only concerned the pleading, by paragraph 18A of the proposed amendment, of the allegation that Holland was a co-publisher of the email with Murray.
Paragraph 18A is as follows:
18A. The first defendant:
(a) authorized; and/or;
(b) assented to; and/or
(c) enabled; and/or
(d) lent her assistance to;
publication of the Email and thereby published the Email.
Particulars
(i)The first defendant set up the Email Account in or around February 2015;
(ii)The first defendant provided the login and password details to the second defendant with the knowledge and intention that the second defendant would use the Email Account for the purpose of writing and sending an email or emails about the plaintiff as part of the Campaign.
Further particulars may be provided after discovery and interrogatories.
The primary judge reasoned that the allegation of the material fact that Holland was a primary publisher of the email was deficient. His Honour reasoned that the particulars were material allegations of fact that need to be pleaded to set up the basis for joint publication, and those allegations themselves would need to be properly particularised.[53] The sufficiency of the pleading is to be judged first, by the necessary condition that it disclose a reasonable cause of action and secondly, by the requirement for sufficient particularity to inform Holland in advance of the case she has to meet.[54] Paragraph 18A failed to achieve the latter and may not have achieved the former because of the difficulty of attributing to Holland sufficient facts to constitute her a primary publisher of the email.[55]
[53]Reasons [114].
[54]Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees’ Association of Western Australia (1987) 13 FCR 413, 417 was cited in support of this statement.
[55]Reasons [115].
The judge reasoned that the only facts identified to support the allegations of authorisation, assent, enabling or assistance are that Holland set up the email account and provided the login and password details to Murray with the knowledge and intention that Murray would use the email account for the purpose of writing and sending an email or emails about the plaintiff as a part of the Campaign. That, his Honour reasoned, may arm Murray with the ability to send the email, but it went no further than that. Taking the statements of principle identified in Webb v Bloch[56] at their highest, there was insufficient in the particulars to link Murray to the particular email sued on. The particulars did not enable the conclusion that Holland intentionally lent her assistance to the ‘existence’ of the email for the purpose of being published. The arming of Murray with ability to send the email from the account could not in his Honour’s view extend to making Holland liable for its content.[57]
[56](1928) 41 CLR 331, 364.
[57]Reasons [117].
The judge continued:[58]
[58]Ibid.
Similarly, adapting some of the language from Webb v Bloch, merely arming Murray:
(a)does not make the defendant “in any degree accessory” to its publication because that notion depends on knowledge of the content of the Email before it is sent, or later confirmation of it - as happened in Webb v Bloch;
(b)nor does it mean the defendant has “by any means whatever” conduced to the publication, because that has to do with the actual writing or sending of the Email;
(c)does not involve the defendant suggesting defamatory matter in order that Murray may write or print it, or publish it; and
(d) does not amount to a request to Murray generally to write a libel.
In Goldsmith v Sandilands, Gleeson CJ reminded us that:
The facts in issue in a civil action case emerge from the pleadings, which, in turn, are framed in the light of the legal principles governing the case. Facts relevant to facts in issue emerge from the particulars and the evidence. The function of particulars is not to expand the issues defined by the pleadings, but "to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial". The function of evidence is to advance, or cut down, the case of a party in accordance with the rules of statute or common law that determine the nature of the information a court will receive.[59]
[59](2002) 190 ALR 370, 371 [2] (citation omitted). See also the thorough analysis of the principles of publication by the Court of Appeal in Google Inc v Trkulja(2016) 342 ALR 504.
The relevant fact in issue is whether Holland published the email. The legal principles that govern the allegation of publication of the email against Holland are uncontroversial and are found in Webb v Bloch.[60] The oft-cited passage from the judgment of Isaacs J in Webb v Bloch has stood as guiding authority propounding the first principles by which all those who might be described as in any degree accessory to the publication are liable for the defamation.[61] It is a lengthy passage and I do not propose to burden these reasons by setting it out but it repays close analysis.
[60](1928) 41 CLR 331, 364.
[61]Google Inc v Trkulja (2016) 342 ALR 504, 590 [347].
Paragraph 18 of the pleading alleges that Murray wrote and sent and thereby published the email from the email account. The essential characteristic of Johnston’s allegation in paragraph 18A is that Holland was an accessory to Murray’s publication. The primary judge identified in his reasons characteristics of accessorial conduct that may be sufficient to affix liability on the actor that are not consequent on an allegation that Murray was ‘armed’ by Holland with the email account, but such conduct is not, as is implied, a necessary condition for being a publisher. The notion that Holland was an accessory to Murray’s conduct does not depend on Holland’s knowledge of the content of the email. Participating by any means whatever in publication is not limited to the actual writing or sending of the email, nor is participation limited to suggesting defamatory matter.
The High Court stated in Thompson v Australian Capital Television Pty Ltd,[62] that to constitute joint tortfeasors two or more persons must act in concert in committing the tort. Torts of all kinds may be joint and defamation is no exception. As I explained in Defteros v Google Inc:[63]
A tort may be imputed to several persons or entities as joint tortfeasors where there is evidence of concerted action, that is, “concerted action to a common end”, and not mere parallel activity or “a coincidence of separate acts by which their conjoined effect cause[d] damage”. The critical element is that those participating in the commission of the tort acted in furtherance of a common design. Broadly speaking, this means a conspiracy with all participants acting in furtherance of the wrong, although it is not necessary that they should realise they are committing a tort. All persons acting in pursuance of a common end, being so identified with each other, are responsible for the entire consequences of their concerted action.
[62](1996) 186 CLR 574.
[63][2017] VSC 158, [48] (citations omitted).
As it must be assumed when considering a pleading amendment that the pleader can make the allegation good at trial, the necessary condition described by the primary judge is satisfied by the material facts pleaded in paragraph 18A. Webb v Bloch plainly identified that the law of defamation encompasses as a publisher a person who authorised, or assented to, or enabled or lent assistance to the publication of the email. The structure of Johnston’s allegations about publication of the email turn on the notion that Holland was complicit to some degree in the conduct of Murray. Proof of any single form of the conduct alleged would be sufficient for a tribunal of fact to conclude that Holland was engaged in concerted action to a common end, or that Holland and Murray were acting in pursuance of a common design and as such Holland was a publisher with Murray of the email. The material allegation is correctly framed in light of applicable principle.
What is of greater significance in the particulars than was identified in the primary judge’s reasons is the reference to the Campaign as a matter from which facts relevant to the facts in issue will emerge. It is as much from that particular as from the setting up of the account and providing the details to Murray that Johnston’s claim that Holland was a publisher with Murray of the email is likely to be developed. The particulars identify that Holland knew and intended that Murray would use the email account in the Campaign.[64]
[64]Compare Dar Al Arkan Real Estate DevelopmentCompany v Majid Al-Sayed Bader Hashim Al Refai [2013] EWHC 1630 (Comm).
I am satisfied that the primary judge erred in concluding that the allegation in paragraph 18A did not disclose material facts which, if uncontradicted at trial, were sufficient to establish that Holland published the email.
The remaining question is whether there was, as the primary judge put it, insufficient in the particulars to link Murray to the particular email sued on. Facts relevant to facts in issue emerge from the particulars and the evidence. The fact in issue is whether Holland published the email by her complicity in the publication by Murray. The facts that are relevant to that issue are identified in the pleading by the allegation that Holland and Murray conducted a Campaign (with others) against Johnston to remove him as the principal of a school. The primary judge characterised this allegation as a statement of a conclusion from facts that are not identified. I do not agree. I consider that the Campaign that is alleged is well understood by the parties. It was a term used by Holland in the tweets. It is referred to elsewhere in the pleadings and particulars. What the primary judge described as ‘facts that are not identified’ is a reference to evidence. I am far from persuaded that the parties are in any doubt as to the evidence that must, either necessarily or prudently, be called to meet the allegation that the Campaign is a material circumstance that may ground an inference that Holland published the email as alleged.
In any event, at this point all that is being debated is the sufficiency of particulars in identifying the proper scope or limit of the factual inquiry concerning the allegation of publication. The just, efficient, timely and cost-effective resolution of the issues in dispute, if it needs to be assisted by further interlocutory steps, would require no more than further particulars of the Campaign that is referred to in the particulars to paragraph 18A. The current structure of the pleading defines the Campaign in the particulars to paragraph 3A. Although the material allegation of fact in paragraph 3A is no longer pressed, those particulars may need to be reworked into the amended pleading. Further, there are a number of other allegations relevant to understanding the Campaign and the roles that will be alleged that both Holland and Murray may have played in it that could inform a jury’s decision to infer the matters alleged in paragraph 18A. It is obvious from the pleading, if not specified in the particulars, that Johnston will rely on the fact that the email is signed off by Mr T.
For these reasons, I will allow the appeal in respect of the refusal of leave to file the proposed further amended statement of claim. The plaintiff will have leave to file, by 13 October 2017, a further amended statement of claim substantially in the form of the proposed pleading dated 1 December 2016, but omitting paragraph 3A save for the particulars to that paragraph that may be incorporated elsewhere in the pleading as the plaintiff may be advised.
The precise particulars that will ultimately be relied on at trial are a little obscure. The plaintiff provided further and better particulars of a related allegation about the Campaign in paragraph 22(a) of his amended statement of claim but that allegation appears to be struck out by the amendments now proposed. During the course of argument, counsel referred to other features of the circumstances that could be relied on as particulars of the Campaign and its relevance to the issue of publication of the email by Holland. That said, it should not be necessary for Holland to search through the pleading or the transcript to understand the particulars being relied on.
I will permit the plaintiff to add to the particulars to paragraph 18A such further allegations as he may be advised. Johnston should add to the particulars to paragraph 18A the best particulars that he is able to give, which must include particulars of Holland’s ‘knowledge and intention’ that is alleged in sub-paragraph (ii) of the particulars.
Orders
I will order that paragraphs 1 to 3 of the order of the primary judge dated 30 August 2017 be set aside. I will extend the limitation period for the plaintiff’s cause of action in defamation against Wayne Murray to 13 October 2017 and order that Wayne Murray be added as the second defendant in the proceeding. I will direct that the plaintiff comply with r 9.11 in respect of this joinder by 13 October 2017. Subject to any submission from counsel, I will order that the defendant and Wayne Murray pay the plaintiff’s costs of the application by summons filed 21 February 2017 and the costs of the appeal by notice of appeal filed 30 August 2017. I grant the defendant and Wayne Murray an indemnity certificate pursuant to s 4 of the Appeal Costs Act1998 (Vic) in respect of the costs of the appeal.
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