Joukhador v Network Ten Pty Limited

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FEDERAL COURT OF AUSTRALIA

Joukhador v Network Ten Pty Limited [2020] FCA 746

File number: NSD 1680 of 2019
Judge: ABRAHAM J
Date of judgment: 1 June 2020
Catchwords: LIMITATION OF ACTIONS – action for defamation – application for extension of time pursuant to s 56A of the Limitation Act 1969 (NSW) – where proceedings commenced out of time and are not maintainable by operation of s 14B of the Limitation Act 1969 (NSW) – whether it was not reasonable in the circumstances for the applicant to have commenced an action in relation to the matter complained of within 1 year from the date of the publications – where the applicant, a solicitor, was facing criminal charges and suspension of practising certificate – where the applicant was unaware of the particular publications the subject of the matter complained of
Legislation:

Limitation Act 1969 (NSW) ss 14B, 56A, 56A(2)

Evidence Act1995 (Cth) s 75

Cases cited:

Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676

Australian Securities and Investments Commission v Schlaepfer [2017] NSWCA 247

Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304; (2017) 96 NSWLR 478

Careyv Australian Broadcasting Corporation [2010] NSWSC 709; (2010) 177 NSWLR 136

Carey v Australian Broadcasting Corporation [2012] NSWCA 176; (2012) 290 ALR 348

Cassar v Network Ten Pty Ltd [2012] NSWSC 680

Corby v Channel Seven Sydney Pty Ltd [2008] NSWSC 245

Houda v State of New South Wales [2012] NSWSC 1036

Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447

Hunter v Hanson [2014] NSWCA 263

John Casley v Australian Broadcasting Corporation [2013] VSCA 182; (2013) 39 VR 526

Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537

Ritson v Gay & Lesbian Community Publishing Ltd & Ors [2012] NSWSC 483

Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1

R vCrabbe [1985] HCA 22; (1985) 156 CLR 464

Schlaepfer v Australian Securities and Investments Commission [2017] NSWSC 47

Spedding v Dailymail.com Australia Pty Ltd [2018] NSWSC 1963

State of Queensland v O’Keefe [2016] QCA 135

Wookey v Quigley (No 2) [2010] WASC 209
Date of hearing: 17 March 2020
Registry: New South Wales
Division General
National Practice Area: Other Federal Jurisdiction
Category: Catchwords
Number of paragraphs: 76
Counsel for the Applicant: Mr K P Smark SC with Ms S Chrysanthou
Solicitor for the Applicant: Mark O’Brien Legal
Counsel for the Respondent: Mr S Dawson SC with Ms L Barnett
Solicitor for the Respondent: Banki Haddock Fiora

ORDERS

NSD 1680 of 2019
BETWEEN:

MARCEL JOUKHADOR

Applicant
AND:

NETWORK TEN PTY LIMITED

Respondent

JUDGE:

ABRAHAM J

DATE OF ORDER:

1 JUNE 2020

THE COURT ORDERS THAT:

1.The application pursuant to s 56A of the Limitation Act 1969 (NSW) to extend the limitation period in which to bring this defamation action be dismissed.

2.The applicant is to pay the costs of the respondent to be agreed or taxed.

Note:   Entry of orders is dealt with in Rule 39.32 of…

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Details
Case
[2020] FCA 746
Decision Date

CaseChat Overview and Summary

In the case of Joukhador v Network Ten Pty Limited, the applicant sought an extension of the limitation period to bring a defamation action against the respondent, Network Ten Pty Limited. The applicant, a solicitor, argued that the proceedings were commenced out of time but were maintainable under section 56A of the Limitation Act 1969 (NSW). The applicant contended that it was not reasonable for them to have commenced the action within one year of the publications due to being unaware of the specific defamatory publications, facing criminal charges, and the suspension of their practising certificate. The court was required to decide whether the applicant had discharged the onus of establishing that it was not reasonable for them to have commenced the action within the limitation period.

The court found that the applicant had not discharged the onus of establishing that it was not reasonable for them to have commenced the action within the limitation period. The threshold to secure an extension under section 56A is high, particularly given the deliberate imposition of a short limitation period by the legislature. The court noted that while a court might accept that it was not unreasonable to not bring an action within the 12-month period if the person was unaware there had been a defamatory publication, an absence of knowledge of the defamatory matter may not be sufficient where, objectively considered, there is "ample ground to suspect" the defendant may have published such material. The court found that the applicant's arguments were not sufficient to establish that it was not reasonable for them to have commenced the action within the limitation period, particularly in light of the applicant's role as a solicitor and the lack of overlap between the criminal proceedings and any defamation proceedings.

The application for an extension of the limitation period was refused, with costs. The applicant is to pay the costs of the respondent to be agreed or taxed.

Orders

Orders of the court

1. The application pursuant to s 56A of the Limitation Act 1969 (NSW) to extend the limitation period in which to bring this defamation action be dismissed.

2. The applicant is to pay the costs of the respondent to be agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the reasons below, the application is dismissed.Evidence relied on in support of the application As noted above, the applicant read the Svilans affidavit in support of the application. The respondent did not object to the affidavit save for clarifying that certain aspects were relied on for a limited purpose and that in being adduced for this application, the respondent had not foreclosed their position in relation to this evidence for the purpose of the broader proceedings. However, the respondent did point out the applicant, a solicitor, did not give evidence, but rather chose to provide evidence from his solicitor based on what the applicant had told him. The submission was directed to the weight to be given to the evidence. As the applicant correctly observed, s 75 of the Evidence Act1995 (Cth) provides an exception to the hearsay rule, permitting such an approach to evidence adduced in interlocutory hearings. The applicant submitted that if I was otherwise satisfied that leave should be granted, that the evidence is not from the applicant should not be a basis to refuse the extension of time. The applicant submitted, referring to two authorities, that it should be inferred that there is a proper forensic reason why it was appropriate to rely on an affidavit from the applicant’s solicitor, as opposed to the applicant himself. In particular, reference was made to observations of McCallum J in Corby v Channel Seven Sydney Pty Ltd [2008] NSWSC 245 at [31]-[32]: 31. Another relevant consideration is whether the making of the order would unduly stultify the plaintiff’s ability to pursue the proceedings. There was evidence from the plaintiff‘s solicitor, on information and belief, that if the plaintiff were required to pay $100,000 by way of security, she would be unable to continue to prosecute these proceedings. I have some hesitation in relying on evidence on information and belief in an application of this kind. Mr TDF Hughes placed considerable emphasis on the fact that the plaintiff has not sworn an affidavit herself in opposition to the defendants’ present application. For my part, I find it unsurprising that she did not do so, in circumstances where it appears likely that the outcome of the proceedings will turn upon a battle as to the credibility of the plaintiff on the one hand and that of the sixth defendant on the other. In those circumstances, most experienced trial advocates would not expose their client to a pre-trial cross-examination on an ancillary application if they could possibly avoid it, and I do not think that I should draw any inference adverse to the plaintiff about the form of the evidence.32. Nonetheless, the position remains that there is no direct sworn evidence as to the likelihood that an order for security would stultify the prosecution of her claim. I am left to assess the reliability of that contention against the other material. Mr Hughes QC relied on evidence that discloses that the plaintiff has received a substantial sum by way of payment for a book about Schapelle Corby of which the plaintiff was a co-author. Mr Littlemore relied on the evidence as to the amount of costs that the defendants have already incurred defending the proceedings, and, in effect, invited me to infer that an individual plaintiff would also incur substantial costs in preparing for such a trial. Otherwise, there was no evidence before me as to the actual means of the plaintiff other than the evidence on information and belief referred to above.

Decision

Reasons for decision

The threshold imposed under s 56A to secure an extension is a high one, in a context of the legislature deliberately imposing a short limitation period: see for example, Cassar at [16] per Hislop J; Carey at [55] – [57] per Beazley JA; McColl JA and Sackville AJA agreeing; Rayney v The State of Western Australia (No 3) [2010] WASC 83 at [41] per Martin CJ; Noonan at [15] - [20] per Keane JA. The applicant has not discharged that burden. Conclusion The application for an extension of the limitation period is refused, with costs.

Ratio Decidendi

Legal Principle Established

While a court might accept that it was not unreasonable to not bring an action within the 12 month period if the person was unaware there had been a defamatory publication (see for example Cassar at [19] per Hislop J; Carey at [61] per Beazley JA; Schlaepfer v Australian Securities and Investments Commission [2017] NSWSC 47 at [17] per Garling J; Wookey v Quigley (No 2) [2010] WASC 209 (Wookey) at [58] per Martin J) as is discussed below at [48] to [52], an absence of knowledge of the defamatory matter may not be sufficient where, objectively considered, there is “ample ground to suspect” the defendant may have published such material: Cassar at [21].Consideration As was acknowledged by the parties at the outset of the hearing, the principles relevant to determining this application are not in dispute between the parties, the issue is with their application to the facts in this case. The applicant puts his submission on three bases; first, that the applicant was not aware of the publications; second, that the applicant “had his hands full” in focussing on other matters being the criminal proceedings and matters associated with the suspension of his practising certificate; and third, that there is overlap between the publications and the criminal offences with which he was charged such that the resolution of the criminal proceedings impacted on any defamation proceedings that might be brought. The applicant referred, in particular, to three cases, Houda v State of New South Wales [2012] NSWSC 1036 (Houda); State of Queensland v O’Keefe [2016] QCA 135 (O’Keefe); and Spedding v Dailymail.com Australia Pty Ltd [2018] NSWSC 1963 (Spedding) as being illustrative of the fact that those factors are relevant to satisfying the onus and were sufficient in those cases to do so. From that it was submitted that this case has like features and, on the evidence, the onus is discharged by the applicant. On the other hand, the respondent submitted that the applicant has not established that the extension should be granted. The respondent submitted that the applicant was wilfully blind about the publications such that any unawareness of the specific publications is insufficient to satisfy the onus. The respondent submitted that this was not a case like Houda, Spedding or O’Keefe because amongst other things, there was not the same overlap between the criminal proceedings and any defamation proceedings. It submitted that this case was more akin to Cassar in which Hislop J refused the application for an extension in circumstances where the applicant was a lawyer and on the facts would have been expected to take prompt action to ascertain if the defendant had published material about the incident and if such material was defamatory. In reply the applicant sought to distinguish Cassar. He submitted that the affidavit evidence was sufficient to find that the applicant was unaware of the publications and that he was not wilfully blind. The applicant submitted that comments made to him by family and friends were not sufficient to put him on notice (in the manner that occurred in Cassar) of the publications.