Landrey v Nine Network Australia Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Landrey v Nine Network Australia Pty Ltd [2024] FCAFC 76

Appeal from: Landrey v Nine Network Australia Pty Ltd [2023] FCA 27
File number: NSD 126 of 2023
Judgment of: WIGNEY, WHEELAHAN AND FEUTRILL JJ
Date of judgment: 31 July 2024
Catchwords: PRACTICE AND PROCEDURE — appeal against orders of the primary judge dismissing the appellant’s application for an extension of the one-year limitation period within which to commence an action in defamation – s 56A of the Limitation Act 1969 (NSW), as in force on 30 June 2020 – where the allegedly defamatory matter concerned transactions that were also the subject of ongoing criminal proceedings – where the appellant, as director of a company, took active steps in pursuing and defending litigation related to the impugned transactions – whether the primary judge erred in failing to hold, in light of the ongoing criminal proceedings, that it was not reasonable for the appellant to have commenced a defamation proceeding within one year of publication of the allegedly defamatory matter – Joukhador v Network Ten Pty Ltd [2021] FCAFC 37; 283 FCR 1, applied – where the appellant had been properly advised not to commence civil proceedings while the criminal proceedings remained on foot – whether the appellant’s conduct was inconsistent with maintaining his right to silence – Held: it was not reasonable for the appellant to have commenced a defamation proceeding within the primary one-year limitation period – appeal allowed – extension of the limitation period granted up to the commencement of the appellant’s defamation proceeding.
Legislation:

Evidence Act1995 (Cth) ss 166(f), 169

Federal Court Rules 2011 (Cth) r 20.31

Crimes Act 1900 (NSW) ss 192E(1)(b), 254(b)(i)

Criminal Procedure Act 1986 (NSW) ss 47, 68(2)(a)

Defamation Act 2005 (NSW) s 42

Defamation Amendment Act 2020 (NSW), Sch 2, cls [2], [5]

Interpretation Act 1987 (NSW) s 36(1)

Limitation Act 1969 (NSW) ss 14B, 14C, 56A, Sch 5, cl 11(4)
Cases cited:

Boensch v Pascoe [2019] HCA 49; 268 CLR 593

Bus v Sydney County Council (1989) 167 CLR 78

Combined Property Holdings Pty Ltd v Galea [2020] QSC 338

Houda v New South Wales [2012] NSWSC 1036

Joukhador v Network Ten Pty Ltd [2021] FCAFC 37; 283 FCR 1

Landrey v Director of Public Prosecutions (NSW) [2022] NSWCA 211; 110 NSWLR 127

Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156

Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70

Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196

Lehrmann v Network Ten Pty Ltd (Limitation Extension) [2023] FCA 385

Reid v Howard (1995) 184 CLR 1

Teubner v Humble (1963) 108 CLR 491

Lamb v Munster (1882) 10 QBD 110
Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 93
Date of hearing: 20 May 2024
Counsel for the Appellant: Mr C Parkin with Mr D Helvadjian
Solicitor for the Appellant: Whitfields Solicitors
Counsel for the…
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Details
Case
[2024] FCAFC 76
Decision Date

CaseChat Overview and Summary

In this case, the appellant, Landrey, sought an extension of the one-year limitation period within which to commence an action in defamation against the respondents, Nine Network Australia Pty Ltd. The appellant argued that it was not reasonable for him to have commenced the defamation proceeding within the primary one-year limitation period due to the ongoing criminal proceedings related to the same transactions. The respondents opposed the application, and the primary judge dismissed the appellant's application for an extension of time.

The central legal issue was whether the primary judge erred in failing to hold, in light of the ongoing criminal proceedings, that it was not reasonable for the appellant to have commenced a defamation proceeding within one year of publication of the allegedly defamatory matter. The court applied the principles established in Joukhador v Network Ten Pty Ltd [2021] FCAFC 37; 283 FCR 1 and considered the legislative context of the short time limit of one year within which to commence a defamation proceeding.

The Full Court found that it was not reasonable for the appellant to have commenced a defamation proceeding within the primary one-year limitation period, given the ongoing criminal proceedings. The appellant's conduct in pursuing and defending litigation related to the impugned transactions, as well as being properly advised not to commence civil proceedings while the criminal proceedings remained on foot, contributed to the conclusion that the primary judge erred in dismissing the application for an extension of time.

The appeal was allowed, and the orders made were as follows:

1. The appeal is allowed.
2. Orders 1 and 2 of the orders made in proceeding NSD809/2022 on 27 January 2023 are set aside, and in lieu thereof it is ordered that:
(a) The applicant is granted an extension of the limitation period in which to commence the proceeding, pursuant to s 56A of the Limitation Act 1969 (NSW), up to and including the date of filing of the originating application being 21 September 2022.
(b) The respondents pay the applicant's costs of the interlocutory application for an extension of time.
3. The respondents pay the appellant's costs of the application for leave to appeal, and of the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. Orders 1 and 2 of the orders made in proceeding NSD809/2022 on 27 January 2023 be set aside, and in lieu thereof it be ordered that:

(a) The applicant be granted an extension of the limitation period in which to commence the proceeding, pursuant to s 56A of the Limitation Act 1969 (NSW), up to and including the date of filing of the originating application being 21 September 2022.

(b) The respondents pay the applicant’s costs of the interlocutory application for an extension of time.

3. The respondents pay the appellant’s costs of the application for leave to appeal, and of the appeal.

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

Background

Background to the litigation

The respondents relied on an affidavit of their solicitor, Marlia Ruth Saunders, affirmed 25 November 2022. That affidavit produced a number of documents, including court documents in proceedings in the Supreme Court of Queensland. The subject matter of these documents was central to the primary judge’s dismissal of the application.Background facts Whether the broadcast was defamatory of the appellant, and if so in what meanings, is a question for a trial. What can be said is that the appellant was named in the broadcast, which referred to investments in property which were not genuine, investors being fleeced of their savings, the falsification of documents, threats by the appellant, companies that were “phoenixed”, and police investigations. The imputations alleged by the appellant pick up these themes. It is apparent that the broadcast and the criminal proceedings that were the subject of the evidence related to the appellant’s involvement in transactions relating to investments in land in Edmonton, which is a suburb of Cairns in Queensland. The transactions included loans, transfers of land, and mortgages. As we have mentioned, the broadcast referred to the falsification of documents. The falsification of documents was also a principal subject of the offences alleged against the appellant. The primary judge summarised the background facts at J[19]–[34] in terms that were not disputed. The following account draws upon the primary judge’s summary and supplements it with some additional facts and observations. In August 2018, the appellant was made aware of the risk of criminal charges when his former business partner, a Mr Michael McCarthy, showed him some emails sent by a Mr George Frederic Barnes that referred to an investigation concerning the appellant by the New South Wales Police. Mr Barnes was the director of a company, Naturelink Environmental Services Pty Ltd (Naturelink). The appellant was at relevant times the sole director of a company, Combined Property Holdings Pty Ltd (Combined Property Holdings). On 7 December 2018, Combined Property Holdings commenced a proceeding (the Galea proceeding) in the Supreme Court of Queensland against its former solicitors. The defendants included a Mr Galea, who was named in the broadcast. The subject of the proceeding was a complex array of alleged transactions concerning land, loans, and securities over the land involving Combined Property Holdings, Naturelink, and another company, Stony Creek Pty Ltd (Stony Creek). One of the allegations was that the defendants had been negligent in failing to advise Combined Property Holdings to register some mortgages. The period of retainer of the defendants by Combined Property Holdings was alleged to be between 12 December 2012 and 29 July 2013. It can be inferred that the appellant gave instructions on behalf of Combined Property Holdings to commence the Galea proceeding and that, at that time, he was aware of information that he was being investigated by the police in connection with certain transactions that were the subject of the Galea proceeding.

Evidence

Evidence Before The Court

The orders of the primary judge were interlocutory. At the outset of the hearing of the appeal we granted leave to appeal, being satisfied that the primary judge’s decision was attended by sufficient doubt as to warrant its reconsideration by the Full Court, and that substantial injustice would result if leave to appeal were refused. Counsel for the respondents did not oppose leave being given.The form of the evidence The appellant’s application to the primary judge was supported by an affidavit of his solicitor, John Michael Whitfield, sworn 11 November 2022. That affidavit produced a number of documents, such as communications with police by and on behalf of the appellant, court attendance notices, and a Crown case statement. Mr Whitfield deposed to many facts on the basis of information given to him by the appellant. There were other facts deposed to by Mr Whitfield that were evidently within his knowledge. Before the primary judge, no objection was taken to the admissibility of any aspect of Mr Whitfield’s affidavit, and no cross-examination of Mr Whitfield took place. As the affidavit contained hearsay representations of the appellant, it was open to the respondents to request that he give evidence: see Evidence Act1995 (Cth) ss 166(f), 169; Joukhador v Network Ten Pty Ltd [2021] FCAFC 37; 283 FCR 1 (Joukhador) at [62]–[63] (Rares, Wigney and Bromwich JJ). No such request was made. The respondents relied on an affidavit of their solicitor, Marlia Ruth Saunders, affirmed 25 November 2022. That affidavit produced a number of documents, including court documents in proceedings in the Supreme Court of Queensland. The subject matter of these documents was central to the primary judge’s dismissal of the application.Background facts Whether the broadcast was defamatory of the appellant, and if so in what meanings, is a question for a trial. What can be said is that the appellant was named in the broadcast, which referred to investments in property which were not genuine, investors being fleeced of their savings, the falsification of documents, threats by the appellant, companies that were “phoenixed”, and police investigations. The imputations alleged by the appellant pick up these themes. It is apparent that the broadcast and the criminal proceedings that were the subject of the evidence related to the appellant’s involvement in transactions relating to investments in land in Edmonton, which is a suburb of Cairns in Queensland. The transactions included loans, transfers of land, and mortgages. As we have mentioned, the broadcast referred to the falsification of documents. The falsification of documents was also a principal subject of the offences alleged against the appellant. The primary judge summarised the background facts at J[19]–[34] in terms that were not disputed. The following account draws upon the primary judge’s summary and supplements it with some additional facts and observations. In August 2018, the appellant was made aware of the risk of criminal charges when his former business partner, a Mr Michael McCarthy, showed him some emails sent by a Mr George Frederic Barnes that referred to an investigation concerning the appellant by the New South Wales Police. Mr Barnes was the director of a company, Naturelink Environmental Services Pty Ltd (Naturelink).

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Counsel for the respondents was critical of the absence of an explanation by the appellant in the evidence as to why he had pursued the Galea proceeding on behalf of Combined Property Holdings, and defended the Barnes proceeding, but was seemingly unable to take steps in a defamation proceeding. It was submitted that the claim that the appellant did not bring defamation proceedings because of a desire on his part to maintain his right to silence could not be reconciled with his conduct generally, but in particular the Galea proceeding, and that ultimately this is why the decision of the primary judge should be affirmed.Consideration We will commence with some general propositions. First, this appeal is an appeal by way of rehearing from orders that did not involve the exercise of any discretion. In addition, the primary judge did not enjoy any relevant advantage over this Court because the evidence was by affidavit, and there was no cross-examination. Therefore, the task of this Court is to conduct a real review of the evidence that was before the primary judge in circumstances where we are in as good a position as the primary judge to assess the evidence. If, upon reviewing all the evidence, the Court is persuaded that the decision below was wrong, then it is the duty of the Court to give effect to its own conclusions. Secondly, the question in issue for the purposes of s 56A of the Limitation Act is whether it was “not reasonable” for the appellant to have commenced a defamation proceeding during the one-year limitation period. The effect of the authorities was not put in issue, and the primary judge’s summary of them was not disputed. Further, there is no suggestion that the primary judge erred in stating the relevant principles that have been developed through the authorities to guide the consideration of an application under s 56A to extend the limitation period. Because the principles are not in issue on this appeal, it is only necessary that we highlight the main points made in Joukhador at [50]–[59], concerning whether a court should reach the state of satisfaction that engages s 56A –(a)the question whether it was not reasonable to commence a defamation proceeding within the one-year limitation period is evaluative, and not discretionary;(b)the burden is on the applicant to establish that it was not reasonable to commence the proceeding, although the applicant does not have to account for every day or week within the one-year period;(c)the test in s 56A is an objective one, requiring that attention be given to all the circumstances as they appear objectively to the court, but where the applicant’s actual reasons for not commencing a proceeding are a part of those circumstances;(d)whether it was not reasonable to have commenced a proceeding is to be informed by the legislative context, which includes as a feature that there is a short time limit of one year within which to commence a defamation proceeding, which furthers the public interest in the timely commencement of such proceedings;(e)the outcome of the application of these principles is that the onus on an applicant will likely be discharged only in unusual circumstances; and(f)one such unusual circumstance may be where a person is facing a criminal charge, and the allegedly defamatory publication raises questions about his or her guilt or innocence that would be likely to cause any trial of, or interlocutory processes (such as discovery) in, the defamation claim to be stayed.