Landrey v Nine Network Australia Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Landrey v Nine Network Australia Pty Ltd [2023] FCA 27

File number: NSD 809 of 2022
Judgment of: LEE J
Date of judgment: 27 January 2023
Catchwords: PRACTICE AND PROCEDURE – application for extension of limitation period to commence action in defamation – whether not reasonable in circumstances for applicant to have commenced action – where criminal proceedings brought against applicant – application refused on a review of all the circumstances of the case  
Legislation:

Evidence Act 1995 (Cth) Pt 3.4, s 75

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

Criminal Procedure Act 1986 (NSW)

Defamation Amendment Act 2020 (NSW)

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

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

Casley v Australian Broadcasting Corporation [2013] VSC 251

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

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

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

Lamb v Munster (1882) 10 QBD 110

Landrey v Director of Public Prosecutions (NSW) [2022] NSWCA 211

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

Paule v McKay (No 2) [2022] ACTSC 190; (2022) 18 ACTLR 135

Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175
Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 67
Date of hearing: 16 December 2022
Counsel for the Applicant: Mr C Parkin
Solicitor for the Applicant: Whitfield Solicitors
Counsel for the Respondents: Mr M J Hoyne
Solicitor for the Respondents: Thomson Geer

ORDERS

NSD 809 of 2022
BETWEEN:

GEOFFREY LANDREY

Applicant
AND:

NINE NETWORK AUSTRALIA PTY LTD (ACN 008 685 407)

First Respondent

TCN CHANNEL NINE PTY LTD (ACN 001 549 560)

Second Respondent

BRADY HALLS (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

LEE J

DATE OF ORDER:

27 JANUARY 2023

THE COURT ORDERS THAT:

1.The applicant’s claim for interlocutory relief referred to in the amended originating application dated 28 October 2022 be dismissed with costs.

2.Within seven days of the making of this order, the proceedings be dismissed with costs.

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


REASONS FOR JUDGMENT

LEE J:

A        INTRODUCTION

  1. Mr Geoffrey Landrey seeks an order under s 56A of the Limitation Act 1969 (NSW) (Limitation Act) extending the one-year limitation period for bringing an action in defamation, along with an order staying this proceeding pending the conclusion of criminal proceedings brought against him.

  2. This proceeding was commenced on 21 September 2022. It relates to a publication by Nine Network Australia Pty Limited (Nine Network), being a television programme broadcast on 15 October 2019, namely a segment of the programme “A Current Affair” entitled “Where’s our money, Geoff?” (Television Broadcast). The Television Broadcast was subsequently published online and made available to view…

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Details
Case
[2023] FCA 27
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Landrey v Nine Network Australia Pty Ltd involved an application for an extension of the limitation period to commence an action in defamation. The applicant, Mr Landrey, sought the extension on the basis of several circumstances, including his facing criminal charges and his health issues. The court was required to determine whether it was reasonable for Mr Landrey to have commenced the action within the prescribed period, and whether the reasons provided by Mr Landrey were sufficient to warrant an extension. The court assessed the applicant's affidavits, the criminal proceedings against him, and the statutory intention behind the limitation period.

The court emphasised the importance of an objective assessment of the circumstances, taking into account the statutory intention to enforce limitation periods and the principle that facing criminal charges generally does not render it unreasonable to commence civil proceedings. The court noted that the applicant's health issues, while acknowledged, did not objectively impact his ability to commence the action. Furthermore, the court found that the applicant's cooperation with the criminal investigation undermined his claim of maintaining a right to silence. The court concluded that the applicant had not discharged the burden of proving that it was not reasonable for him to commence the action within the limitation period.

In light of the findings, the court dismissed the applicant's claim for interlocutory relief and ordered the proceedings to be dismissed with costs. The court's decision underscored the need for a comprehensive evaluation of all objective circumstances, rather than relying solely on subjective reasons or general principles. The applicant's reasons for the delay did not sufficiently justify an extension of the limitation period, and the court adhered to the statutory intention by enforcing the limitation rules.

Orders

Orders of the court

1. The applicant’s claim for interlocutory relief referred to in the amended originating application dated 28 October 2022 be dismissed with costs.

2. Within seven days of the making of this order, the proceedings be dismissed with costs.

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

Background

Background to the litigation

It is important to recall that the affidavits were affirmed at a time when proceedings against Mr Landrey had been commenced. Despite this, the criminal proceeding is not mentioned, nor is there any suggestion details are being withheld as to relevant matters by reason of maintaining a forensic position as to the defence to the charges or by reason of any other concern regarding the criminal allegations made against him. To the contrary, Mr Landrey emphasises in the May Affidavit that he has gone into such detail to provide the proper context to the history of the matter (at [5]–[6], [8]):5.... I offer the following comments as background to assist the Court in its preliminary understanding of the issues for the purposes of the current applications, the reason why they have arisen, and the need for the issues to be properly and comprehensively addressed by this Court should the parties not be otherwise able to resolve them between themselves. I acknowledge that much of what I say herein is the same as that pleaded by the Plaintiff in its statement of claim, however I have said the same here as I believe it properly describes the facts as they occurred, and when read in its entirety it gives proper context to those facts and the history of the matter. 6.Whilst I accept that many of the facts asserted by the Plaintiff are disputed by the Defendants, and that such issues are to be determined by this Court if the parties cannot otherwise resolve the claim, I say and sincerely believe that they are facts and thus issues that must be properly tested in open Court because they concern the Defendant's conduct as solicitors and officers of this Honourable Court.…8.I am aware of the following facts because I was personally involved in the circumstances of the dealings as they are described, or that I have become aware of since being appointed as the Director of the Plaintiff including by reference to the Plaintiff’s books and records.(Emphasis added). The overlap with the criminal proceedings was noted by Henry J in his Honour’s reasons concerning the security for costs application: Combined Property Holdings Pty Ltd v Galea [2020] QSC 338 (at [9], [15], [18], [41]). In particular, his Honour observed the following in regard to an inconsistency concerning a mortgage exhibited to the May Affidavit (at [9]): Such an inconsistency is surprising given Mr Landrey must be well aware his conduct relating to Stony Creek’s purported execution of the investor mortgages is the subject of criminal charges pending against him. That prosecution case alleges in part that Mr Landrey later used false, backdated purported versions of eleven such “mortgages” to advantage the plaintiff company. (Citation omitted). Secondly, and relatedly, the affidavit evidence on this application puts the matter far too highly. Mr Landrey has not maintained his right to silence as the course would be generally understood, and as was suggested by the Whitfield Affidavit. Mr Landrey made the decision to cooperate with the criminal investigation, at least to a certain extent, by providing answers to police inquiries. As outlined in the chronology above, Mr Landrey’s account of events as to the allegations made against him to DSC Schussler on 19 August 2019, and again through his solicitor on 21 January 2020, is that the NSW Police was being used as a vehicle to “harass” him.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

This is an interlocutory hearing, and one must be careful not to adopt a counsel of perfection. But Mr Landrey bears the relevant onus and, at best, it is difficult to ascertain how Mr Landrey’s health was impacted during the relevant period. In any event, even accepting the objective evidence at its highest, the health afflictions of Mr Landrey do not seem to be dire. It is far from unusual for a man of his stage of life to see several specialists and be prescribed with medication. The observations made by his solicitor are of limited probative value, particularly in circumstances where aspects of the affidavit material have already been demonstrated to pitch the matter too highly by reference to objective, verifiable facts. Despite any health concerns Mr Landrey may have subjectively held, no sufficient basis is set out in the evidence as to how or why these health issues actually impacted upon Mr Landrey such that it was not objectively reasonable for him to commence the defamation proceedings. H EVALUATION AND CONCLUSION As I have repeatedly noted, the burden of establishing that it was not reasonable to commence a proceeding within the one-year period is on Mr Landrey. I am conscious that in assessing whether this burden has been discharged the focus must be upon an objective assessment of the individual circumstances of the case. Despite this, it is worth stressing three matters of principle which transcend individual circumstances: first, the general notion that where a person is facing a criminal charge (or reasonably anticipating a criminal charge) and the publication raises questions of the applicant’s guilt or innocence, it will ordinarily not be reasonable to commence civil proceedings of a kind that realistically could allow forensic examination of matters bearing upon guilt or innocence; secondly, too ready an acceptance of circumstances that are said to have made it unreasonable to sue would undermine the evident statutory intention; and thirdly, the Court is required to evaluate all of the objective circumstances as a whole, not piecemeal. For the reasons I have explained, I am less than convinced as to Mr Landrey’s actual reasons for failing to commence a proceeding in time. I do not discount the possibility that the evidence as to his subjective reasons may be correct, but the affidavit material is less than compelling, particularly as to Mr Landrey’s concerns about maintaining his right to silence and as to his health. Mr Landrey seemed content to proceed on the basis that all that need be done is to point to extant criminal proceedings and the general observations of the Full Court in Joukhador. I have already partly explained why this case is quite different from Joukhador, but additionally, it was accepted that Mr Landrey, unlike Mr Joukhador, became aware of the Television Broadcast when it first aired. Indeed, far from failing to investigate the matter further, Mr Landrey sought the advice of his solicitor, who subsequently sent a letter of demand on behalf of Mr Landrey to Nine Network on 5 January 2020, putting them on notice that Mr Landrey intended to commence a defamation proceeding: Whitfield Affidavit (at [18]).

Ratio Decidendi

Legal Principle Established

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