Lehrmann v Network Ten Pty Limited (Limitation Extension)

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FEDERAL COURT OF AUSTRALIA

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

File numbers: NSD 103 of 2023
NSD 104 of 2023
Judgment of: LEE J
Date of judgment: 28 April 2023
Catchwords: DEFAMATION – application for extension of limitation period to commence action in defamation – whether not reasonable in circumstances for applicant to have commenced actions in defamation within one year of impugned publications – consideration of relevant principles pursuant to statutory test – where applicant charged with a serious criminal offence – where applicant aware of impugned publications before being charged with serious criminal offence – where applicant relied upon legal advice to defer civil proceedings until the conclusion of any criminal investigation and processes – extension allowed – discretion exercised to extend time up until commencement of proceedings
Legislation:

Civil Dispute Resolution Act 2011 (Cth) ss 3, 6, 11

Evidence Act 1995 (Cth) Pts 3.11, 4.6, ss 59, 75, 135(a), 136(a), 144, 166(c), 166(d), 166(f), 167, 167(a), 169(1)(a), 169(1)(b), 169(1)(c), 169(3)

Federal Court of Australia Act 1976 (Cth) Pt VB, ss 37M, 40

Judiciary Act 1903 (Cth) s 79

Civil Procedure Act 2005 (NSW) ss 56, 57, 58

Civil Procedure Act 2010 (Vic) ss 7, 8

Court Procedures Act 2004 (ACT) s 5A

Court Procedures Rules 2006 (ACT) r 21 (repealed)

Defamation Act 2005 (NSW) s 14(2), Sch 4, cl 7

Defamation Act 1974 (NSW) s 3(d)

Limitation Act 1969 (NSW) ss 14C, 56A, 56A(2), 63, 64, 65, 66, 67, Sch 5, cl 11(3)

Supreme Court Civil Rules 2006 (SA) r 3 (repealed)

Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 1.14 (repealed)

Supreme Court Rules 1987 (NT) r 1.10

Uniform Civil Procedure Rules 1999 (Qld) r 5

Uniform Civil Rules 2020 (SA) r 3.1
Cases cited:

Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 332

Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345

Axon v Axon (1937) 59 CLR 395

Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50

Ballard v Lumbermens Mutual Casualty Co 148 NW 2d 65 (1967)

Barilaro v Google LLC [2022] FCA 650

Barilaro v Shanks-Markovina (No 3) [2021] FCA 1100; (2021) 393 ALR 469

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

Bray v F Hoffman-La Roche Ltd [2002] FCA 243; (2002) 118 FCR 1

Carey v Australian Broadcasting Corporation [2010] NSWSC 709; (2010) 77 NSWLR 136

Carey v Australian Broadcasting Corporation [2012] NSWCA 176; (2012) 84 NSWLR 90

Casley v Australian Broadcasting Corporation [2013] VSC 251

Commercial Union Assurance Co of Aus Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389

The Commonwealth v Mewett (1997) 191 CLR 471

Edgington v Fitzmaurice [1885] 29 Ch D 459

Gafford v Trans-Texas Airways 299 F 2d 60 (1962)

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

Jones v Dunkel (1959) 101 CLR 298

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

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Details
Case
[2023] FCA 385
Decision Date

CaseChat Overview and Summary

In the case of Lehrmann v Network Ten Pty Limited (Limitation Extension), the applicant, Bruce Lehrmann, sought an extension of the limitation period to commence defamation actions against Network Ten and others. The dispute arose from publications made by Network Ten and its employees, which Lehrmann claimed defamed him. The Federal Court was tasked with deciding whether it was reasonable for Lehrmann to have commenced the actions within one year of the impugned publications. The court considered statutory principles governing the extension of limitation periods and the circumstances under which it would be reasonable to defer legal action.

The primary legal issue before the court was whether the applicant had acted reasonably in deferring the commencement of the defamation actions until after the conclusion of related criminal proceedings. Lehrmann had been charged with serious criminal offences and was advised by legal counsel to wait until the criminal matters were resolved before proceeding with civil litigation. The court examined the principles that guide the exercise of discretion to extend limitation periods, taking into account the statutory policy encouraging the prompt resolution of defamation disputes.

The court found that it was reasonable for Lehrmann to have deferred the commencement of the defamation actions due to the concurrent criminal proceedings and the advice received from his legal counsel. The court exercised its discretion under s 56A(2) of the Limitation Act 1969 (NSW) to extend the limitation period. The extension was granted up until the commencement of the proceedings on 7 February 2023. The court's decision recognised the complexity of the situation and the need to balance the statutory policy of prompt resolution with the practicalities of overlapping legal processes.

The court ordered that the limitation period in each proceeding be extended until the commencement of these proceedings on 7 February 2023, in accordance with s 56A of the Limitation Act 1969 (NSW). This decision allows Lehrmann to proceed with his defamation actions, taking into account the exceptional circumstances of the case.

Orders

Orders of the court

1. The limitation period in each proceeding be extended until the commencement of these proceedings on 7 February 2023 pursuant to s 56A of the Limitation Act 1969 (NSW).

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

The discretion conferred by s 56A(2) to extend the limitation period has been described as “unfettered”, but I would prefer not to use that word. The discretion is broad but is not at large. It is confined by the duty to act judicially and by the scope and purposes of the Limitation Act, and confined in the sense no extension can exceed three years. The discretion also falls to be exercised in the context of the legislative policy encouraging the prompt resolution of defamation disputes including, importantly, a confined limitation period (as discussed at [21] above).C THE EVIDENCE C.1 The Unusual Course of the Evidence in Chief The course that unfolded as to the evidence adduced by Mr Lehrmann in support of the applications was, to use a neutral word, unwonted. To the extent it is possible to explain what occurred, it is worth doing so in a little detail. The hearing of these applications was fixed at the earliest opportunity. This course was consistent with facilitating the just resolution of these disputes according to law and as quickly, inexpensively, and efficiently as possible: see s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Further, unlike some other contexts where limitation defences can give rise to issues for determination likely to overlap with issues at trial (such as when a claimant first suffered damage), the oft-noted dangers of separate determination of limitation issues do not presently loom. As is commonly the case, the affidavit evidence in support of the extension was by a solicitor on information and belief. It is to state the obvious to remark that at a final hearing, such evidence would be excluded by the general hearsay rule in s 59 of the EA, but the exception in s 75 provides that the hearsay rule does not apply in interlocutory proceedings “if the party who adduces it also adduces evidence of its source”. Depending upon the facts in issue on the interlocutory application, and whether the making of a relevant representation is bona fide in dispute, the adduction of hearsay evidence of a representation can conceivably occasion unfairness. Any such unfairness, of course, can be remedied, in an appropriate case, in at least three ways: first, by discretionary exclusion under Pt 3.11 of the EA on the basis, for example, that the probative value of the relevant representation is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the respondent (see s 135(a)); secondly, by discretionary limitation under Pt 3.11 of the EA if there is a danger the representation would be unfairly used to prove the truth of the disputed out of court representation (see s 136(a)); or thirdly, by making a reasonable request under Pt 4.6 of the EA for the purpose of determining a question that relates to a representation by requesting the claimant to call as a witness the person who made the representation (see s 166(f)). As to the third of these potential responses, the opponents made what they asserted were reasonable requests to call Mr Lehrmann, and, in the case of Ms Wilkinson, to call Mr Lehrmann’s former solicitor, Mr Warwick (“Rick”) Korn. In support of the requests, the opponents referred to Joukhador (at 14 [62]) where the Full Court rejected a submission that the respondent in that case was deprived “of the opportunity to test the evidence” of the claimant’s circumstances because of hearsay evidence. In doing so, the Full Court observed a request could have been made to the claimant to call himself and, if the claimant refused without reasonable cause, an order could have been made under s 169(1) of the EA to order the claimant be called as a witness or exclude the evidence the subject of the request. Rather than relying on s 166(f), the requests of the opponents were initially made by reference to ss 166(c) and (d). This is unsurprising, as there is evidently a slip in the reasons of the Full Court as ss 166(c) and (d) were referenced in Joukhador (which are directed to requests made in relation to documents or things, usually business records) and not to s 166(f), which relates to previous representations more generally. But the larger point made by the Full Court, as to the ability to make a reasonable request, was appropriately relied upon by the opponents as a way of ameliorating the perceived unfairness of controversial hearsay evidence being contained in the solicitor’s affidavits.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The criminal proceeding instituted against Mr Lehrmann was listed for mention in the Australian Capital Territory Magistrate’s Court on 16 September. Mr Warwick Korn appeared on behalf of Mr Lehrmann and informed the Court that Mr Lehrmann would plead not guilty.Later period and following the expiration of the limitation period Although my focus must be on the circumstances within the one-year limitation period in considering the relevant test, if an entitlement to an extension is established, the question of discretion as to the length of the extension arises. In this context it is appropriate to make some post-expiry factual findings. Both prior to expiry and afterwards there was extensive media reporting and public commentary by prominent personalities about the allegations made against Mr Lehrmann: R v Lehrmann (No 3) [2022] ACTSC 145; (2022) 369 FLR 458 (at 459 [2] per McCallum CJ). On 18 March 2022, Mr Lehrmann filed an application in the Supreme Court of the Australian Capital Territory for a permanent stay of the prosecution and, in the alternative, an order postponing or delaying the trial. He also sought (highly unorthodox) orders requiring various media entities “un-named and not joined as respondents to the application” to “take down any such material they have published or caused to be published” and restraining “any media outlet from publishing any material of and concerning [Mr Lehrmann and/or Ms Higgins] that relates to or refers to directly or indirectly the present criminal proceedings or any part of the subject matter to which those proceedings relate”: see R v Lehrmann (No 2) [2022] ACTSC 92 (at [4]–[5] per McCallum CJ). These applications were refused on 29 April 2022. The trial was listed to commence on 27 June 2022 and Mr John Korn was retained as counsel. In about May, Mr John Korn suffered a medical episode and Mr Lehrmann engaged different counsel and a new firm of solicitors. At the “Logie Awards” ceremony on 19 June, Ms Wilkinson gave a speech concerning her interview of Ms Higgins on The Project. The speech was broadcast on national television and was the subject of extensive further public commentary. The speech was delivered notwithstanding the criminal trial was set to commence eight days later and the fact that Ms Wilkinson “may be taken to be aware that she [was proposed] to be called as a Crown witness”: R v Lehrmann (No 3) (at 461 [19] per McCallum CJ). A further application was then made for a temporary stay of the trial. The Chief Justice noted (at 459 [2]) that the case against Mr Lehrmann had attracted a level of attention that was “certainly extreme”. The trial, delayed upon the order of the Chief Justice, commenced before her Honour and a jury in early October 2022. Mr Lehrmann did not give evidence. The jury was discharged following juror misconduct during deliberations in late October. The DPP foreshadowed a second trial in early 2023, before later taking the step of announcing at a press conference on 2 December 2022 that the Crown would no longer be proceeding. A Notice Declining to Proceed was filed, bringing the prosecution of Mr Lehrmann to an end.