Mickelberg v 6PR Southern Cross Radio Pty Ltd
[2001] WASC 267
MICKELBERG & ANOR -v- 6PR SOUTHERN CROSS RADIO PTY LTD & ORS [2001] WASC 267
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 267 | |
| Case No: | CIV:2235/2000 | 18 SEPTEMBER 2001 | |
| Coram: | HASLUCK J | 5/10/01 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| B | |||
| PDF Version |
| Parties: | PETER MICKELBERG SIMONE MARIE MICKELBERG 6PR SOUTHERN CROSS RADIO PTY LTD PAUL ROBERT MURRAY RICHARD FAIRFAX COURT |
Catchwords: | Defamation Application to strike out claim Finding that second plaintiff not identified by words complained of Claim struck out for failure to disclose reasonable cause of action Application for leave to appeal Question of whether strikingout order is a final or interlocutory order Application for an extension of time Factors relevant to extension of time |
Legislation: | Supreme Court Act 1935, s 58(1), s 60(1)(f) |
Case References: | Boomalli Ltd v Hake & Anor [1985] WAR 7 Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148 Gallo v Dawson (1990) 93 ALR 479 Girando v Girando (1997) 18 WAR 450 Little v State of Victoria [1998] 4 VR 596 Mickelberg & Anor v 6PR Southern Cross Radio Pty Ltd & Ors [2001] WASC 150 Mickelberg & Anor v 6PR Southern Cross Radio Pty Ltd & Ors [2001] WASC 33 Ratnam v Cumarasmy & Anor [1964] 3 All ER 933 Biala Pty Ltd v Mallina Holdings Ltd, unreported; FCt SCt of WA; Library No 7805; 30 August 1989 Brabazon v Jones & Anor, unreported; FCt SCt of WA; Library No 5139; 10 November 1983 Brouwer v Titan Corporation Ltd (1997) 73 FCR 241 Carr & Anor v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246 Coles v Wood [1981] 1 NSWLR 723 Cumbes v Robinson [1951] 1 All ER 661 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 Hall v Nominal Defendant (1966) 117 CLR 423 Hughes v Gayles (1995) 14 WAR 434 Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 Jones v Insole (1891) 64 LT 703 Licul v Corney (1976) 180 CLR 213 Mantegna v Seafest Sales Pty Ltd, unreported; FCt SCt of WA; Library No 950497; 24 August 1995 Minogue v Williams (2000) 60 ALD 366 NCSC v Monsoon Nominees Pty Ltd & Ors (1991) 9 ACLC 66 Palata Investments Ltd v Burt and Sinfield Ltd [1985] 2 All ER 517 Raeside Pty Ltd v Jymcroe Valley Pty Ltd, unreported; FCt SCt of WA; Library No 7196; 18 July 1988 Smith & Anor v Littlemore & Ors (1996) 15 WAR 289 Smith v McCusker [2000] WASCA 320 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Wilson & Ors v Metaxas [1989] WAR 285 Wilson v Official Trustee in Bankruptcy [2000] FCA 304 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
SIMONE MARIE MICKELBERG
Second Plaintiff
AND
6PR SOUTHERN CROSS RADIO PTY LTD
First Defendant
PAUL ROBERT MURRAY
Second Defendant
RICHARD FAIRFAX COURT
Third Defendant
Catchwords:
Defamation - Application to strike out claim - Finding that second plaintiff not identified by words complained of - Claim struck out for failure to disclose reasonable cause of action - Application for leave to appeal - Question of whether strikingout order is a final or interlocutory order - Application for an extension of time - Factors relevant to extension of time
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Legislation:
Supreme Court Act1935, s 58(1), s 60(1)(f)
Result:
Application allowed
Category: B
Representation:
Counsel:
First Plaintiff : No appearance
Second Plaintiff : Mr M L Bennett
First Defendant : Mr S M Davies
Second Defendant : Mr S M Davies
Third Defendant : Mr K J Martin QC & Mr N R Stagg
Solicitors:
First Plaintiff : No appearance
Second Plaintiff : Bennett & Co
First Defendant : Corrs Chambers Westgarth
Second Defendant : Corrs Chambers Westgarth
Third Defendant : Freehills
Case(s) referred to in judgment(s):
Boomalli Ltd v Hake & Anor [1985] WAR 7
Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148
Gallo v Dawson (1990) 93 ALR 479
Girando v Girando (1997) 18 WAR 450
Little v State of Victoria [1998] 4 VR 596
Mickelberg & Anor v 6PR Southern Cross Radio Pty Ltd & Ors [2001] WASC 150
Mickelberg & Anor v 6PR Southern Cross Radio Pty Ltd & Ors [2001] WASC 33
Ratnam v Cumarasmy & Anor [1964] 3 All ER 933
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Case(s) also cited:
Biala Pty Ltd v Mallina Holdings Ltd, unreported; FCt SCt of WA; Library No 7805; 30 August 1989
Brabazon v Jones & Anor, unreported; FCt SCt of WA; Library No 5139; 10 November 1983
Brouwer v Titan Corporation Ltd (1997) 73 FCR 241
Carr & Anor v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246
Coles v Wood [1981] 1 NSWLR 723
Cumbes v Robinson [1951] 1 All ER 661
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Hall v Nominal Defendant (1966) 117 CLR 423
Hughes v Gayles (1995) 14 WAR 434
Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257
Jones v Insole (1891) 64 LT 703
Licul v Corney (1976) 180 CLR 213
Mantegna v Seafest Sales Pty Ltd, unreported; FCt SCt of WA; Library No 950497; 24 August 1995
Minogue v Williams (2000) 60 ALD 366
NCSC v Monsoon Nominees Pty Ltd & Ors (1991) 9 ACLC 66
Palata Investments Ltd v Burt and Sinfield Ltd [1985] 2 All ER 517
Raeside Pty Ltd v Jymcroe Valley Pty Ltd, unreported; FCt SCt of WA; Library No 7196; 18 July 1988
Smith & Anor v Littlemore & Ors (1996) 15 WAR 289
Smith v McCusker [2000] WASCA 320
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Wilson & Ors v Metaxas [1989] WAR 285
Wilson v Official Trustee in Bankruptcy [2000] FCA 304
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1 HASLUCK J: The second plaintiff, Simone Marie Mickelberg, has brought before the Court a motion to extend time to appeal and to the extent necessary the grant of leave to appeal. The materials in support of the application include the affidavit of Simone Marie Mickelberg sworn 4 September 2001, written submissions prepared by counsel for each of the parties and the transcript of proceedings of an earlier hearing concerning this matter on Friday, 15 June 2001.
2 The second plaintiff seeks to appeal against an order for judgment against the second plaintiff handed down on 15 June 2001 (Mickelberg & Anor v 6PR Southern Cross Radio Pty Ltd & Ors [2001] WASC 150). The relevant order provided that the plaintiffs' application for leave to reamend the amended statement of claim in terms of their minute dated 7 May 2001 be dismissed, and the second plaintiff's action be dismissed.
3 It is apparent from the reasons for judgment that the minute of proposed claim contended for by the second plaintiff reflected an attempt to replead the second plaintiff's claim as a consequence of an earlier ruling against her. The repleading failed to disclose a reasonable cause of action and the difficulties confronting the second plaintiff were thought to be insurmountable. Accordingly, the second plaintiff was refused leave to undertake any further repleading, and her claim was struck out.
4 Importantly, for present purposes, par 2 of the formal order subsequently extracted by the solicitors for the first and second defendants was expressed in these terms:
"2. The writ of summons and the amended statement of claim insofar as they relate to the second plaintiff be struck out and it is this day adjudged that the second plaintiff's action be dismissed."
5 It appears from the transcript of the proceedings on Friday 15 June 2001, that the plaintiffs were not represented by counsel at the hearing in question. The second plaintiff indicated at the hearing that she had in mind to appeal against the judgment that had been handed down. There was no discussion as to the relevant time limits in that regard.
6 It was common ground at the hearing before me on Tuesday, 18 September 2001, being the hearing at which the present application for an extension of time to appeal was considered, that as the decision sought to be appealed from was delivered on 15 June 2001, any notice of appeal had to be filed within 21 days, that is to say, on or before 6 July 2001. A
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- period of 21 days within which to institute an appeal is prescribed by O 63 r 4 of the Supreme Court Rules.
7 It was common ground also that no notice of appeal or application for leave to appeal had been filed and served within the prescribed time. Accordingly, the second plaintiff was obliged to seek an extension of time pursuant to O 3 r 5.
8 The rule in question provides that the Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order, or direction, to do any act in any proceedings. The Court may extend any such period, although the application for extension is not made until after the expiration of that period.
9 The plaintiffs in this action sought relief in respect of words that are alleged to be defamatory uttered in a radio interview between the second defendant, Paul Murray, and the third defendant, the former Premier of the State of Western Australia, Richard Court. The interview was broadcast by the first defendant, 6PR Radio Station, on or about 18 April 2000, in Perth.
10 The radio interview was conducted by Mr Murray, who is a presenter employed by 6PR. The third defendant was an invited guest on Mr Murray's radio programme. The issue under discussion was whether it was appropriate for one of Mr Court's parliamentary colleagues to have provided character references to "the Mickelbergs" so that "these people" could move to New Zealand, bearing in mind that "these people" were found guilty of offences and "went to gaol and did their time." It was common ground at the various hearings that Simone Mickelberg was the wife of the first plaintiff. She had not been convicted of any offences and had not been to gaol.
11 The writ of summons in this matter was issued on 14 September 2000, bearing an indorsement of claim. The plaintiffs filed and served a statement of claim in due course and subsequently applied for leave to amend the same in terms of a minute dated 13 November 2001.
12 An application to strike out the plaintiffs' claim and an application for leave to amend were heard concurrently. The outcome of the application to strike out depended upon whether the plaintiffs could obtain leave to amend in that leave to amend should not be allowed in respect of a claim that failed to disclose a reasonable cause of action. On 13 February 2001, I handed down written reasons in response to the
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- plaintiffs' application for leave to amend in terms of the November minute (Mickelberg & Anor v 6PR Southern Cross Radio Pty Ltd & Ors [2001] WASC 33).
13 One of the principal challenges to the November minute was the submission that the claim disclosed no reasonable cause of action in respect of the second plaintiff, Simone Mickelberg, because the words complained of would not convey to the mind of the ordinary, reasonable person, that the second plaintiff, who was not identified by name, fell within the class of persons being referred to.
14 In the final analysis, leave to amend in terms of the November minute was not allowed, but the second plaintiff was permitted to replead. This repleading was effected by a subsequent minute dated 7 May 2001 which I later described as the May minute of proposed claim.
15 In my reasons for judgment dated 15 June 2001, I concluded that the words complained of were not capable of conveying a meaning defamatory of the second plaintiff either in their ordinary and natural meaning or by way of innuendo because they did not identify the second plaintiff as the subject of the criticism.
16 I said that, in my view, a reasonable listener would understand that the interview was concerned essentially with those members of the Mickelberg family who had a prior record of criminal convictions and in respect of whom certain testimonials were to be obtained so that they could move to New Zealand. I held that the second plaintiff did not fall within this description.
17 I went on to say that I had been prepared to grant the second plaintiff leave to replead on the previous occasion, pursuant to the general practice that a plaintiff should not be lightly deprived of an opportunity to reformulate a case in the light of reasons given by the Court as to the manner in which a claim was thought to be insufficiently pleaded; however, as the second plaintiff had been afforded that opportunity, and had been unable to overcome the difficulties confronting her, I considered that she should not be allowed leave to replead on this occasion.
18 I held further that the second plaintiff had failed to demonstrate an arguable case in regard to an alleged publication on the first defendant's Internet website. I refused to allow the second plaintiff leave to replead in respect of that aspect of the claim on the ground that the second plaintiff's prospects of success had effectively been determined by the ruling against her on the primary issue, that is to say, the question of whether ordinary
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- listeners to the programme who knew the plaintiff would have understood that it referred to her. I will call this the "identification issue".
19 It was against this background that an order was made in the terms mentioned earlier, that is to say, that the writ of summons and the amended statement of claim insofar as they relate to the second plaintiff be struck out and it is adjudged that the second plaintiff's action be dismissed. For ease of reference, I will call this the "15 June striking-out order".
20 I must now look briefly at the question of whether the 15 June striking-out order should be characterised as a final or as an interlocutory order.
21 Section 58(1) of the Supreme Court Act1935 provides that subject to the Act and to the rules of court, the Full Court shall have jurisdiction to hear and determine appeals from a Judge whether sitting in court or in chambers. Section 60(1)(f) provides that no appeal shall lie without the leave of the Judge or of the Full Court from any interlocutory order or interlocutory judgment.
22 It follows that if the 15 June striking-out order be characterised as a final order, leave to appeal to the Full Court is not required. Nonetheless, bearing in mind that a notice of appeal was not filed and served within the period of 21 days prescribed by the Supreme Court Rules, the second plaintiff, as the prospective appellant, in any event, would be required to obtain an extension of time.
23 If the 15 June striking-out order be characterised as an interlocutory order, the second plaintiff is obliged to obtain an extension of time within which to apply for leave to appeal. She must also obtain leave to appeal.
24 This brings me to O 63A r 2. This rule was introduced in 1996 with a view to expediting appeals. It provides that O 63A applies to an appeal to the Full Court from an interlocutory order or interlocutory judgment of a Judge.
25 Order 63A r 1 provides that an appeal - a term which is defined to include an application for leave to appeal - shall be commenced within 21 days after the order or judgment was handed down. It follows from this that if the 15 June striking-out order be regarded as an interlocutory order or judgment, then application for leave to appeal should have been filed on or before 6 July 2001.
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26 In Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148, the appellant as plaintiff sought declarations from the Court as to the status of certain mineral claims. The Judge made an order striking out the statement of claim and dismissing the action with costs. When a question arose as to whether leave to appeal was needed by reason of s 60(1)(f) of the Supreme Court Act, the Full Court held that if the only order had been to strike out the statement of claim, the action itself would have remained on foot, the rights of the parties would not have been finally disposed of, and the order would have been interlocutory. But the order had dismissed the action and was final.
27 This appears to be a persuasive authority that the 15 June striking-out order, which purports to dismiss the second plaintiff's action, should be regarded as a final order, with the result that leave to appeal is not required. However, counsel for the defendants placed considerable reliance upon a ruling by the Court of Appeal in Little v State of Victoria [1998] 4 VR 596 in which it was held that an order dismissing a proceeding because no reasonable cause of action was disclosed was an order in an interlocutory application. The true test of finality was said to be whether the judgment or order finally disposes of the rights of the parties.
28 In reviewing these authorities, I must take account of the fact that O 63A was introduced into the Supreme Court Rules in this State in 1996. Order 63A r 4(1) provides that as soon as practicable after an appeal is commenced (which includes an application for leave to appeal), it shall be referred to the Judge who made the order or judgment under appeal for a directions hearing in chambers.
29 By O 63A r 4(2), at the directions hearing the Judge may direct that an application for leave to appeal be heard together with the appeal or grant or refuse leave or direct that the appeal or any application for leave to appeal proceed as an appeal under O 63.
30 At a first glance, this suggests that if there are any difficulties surrounding the application for leave to appeal, then, with a view to avoiding duplicity of argument, directions can be made which will have the effect of the leave to appeal being referred to the Full Court in conjunction with the appeal. One might conclude, in the context of the present case, that the question of whether the 15 June striking-out order should be characterised as a final or interlocutory order should be deferred for the consideration of the Full Court pursuant to a direction that the
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- question of leave to appeal be heard together with the appeal concerning the merits of the second plaintiff's case.
31 It was put to me by counsel for the third defendants, however, that such a course was not open. Counsel submitted that the effect of O 63A r 2 is that the powers allowed to the Court by O 63A can only be exercised in respect of an appeal to the Full Court "from an interlocutory order or interlocutory judgment". In other words, before any direction can be given that an application for leave to appeal be heard together with the appeal, a finding must be made that the order or judgment under appeal is interlocutory.
32 In my view, I am bound to follow the ruling of the Full Court in this State in Florida Investments (supra) and to hold that the 15 June striking-out order which purported to dismiss the second plaintiff's action was a final order. Further, and in any event, this seems to be consistent with the rationale of the distinction between a final and interlocutory order in that the rights of the second plaintiff appear to have been finally disposed of by the 15 June striking-out order. Save for any relief obtained by her on appeal, there does not seem to be any further step in the proceedings which she could take in order to assert her cause of action.
33 Accordingly, I will approach the application before me upon the basis that what is being applied for essentially is an extension of time within which to file and serve a notice of appeal in order to institute the desired appeal.
34 If I be wrong in the view I have just expressed, then a question arises, on the assumption that the 15 June striking-out order is an interlocutory order, as to whether an extension of time for leave to appeal should be granted. If time is extended, this, in turn, will give rise to a further question as to whether leave to appeal should be granted, or whether a direction should be given pursuant to O 63A r 2 that the application for leave to appeal be heard together with the appeal.
35 It follows from this analysis that, having determined that the 15 June striking-out order is a final order, I must now determine whether the second plaintiff has made out a case for an extension of time within which to institute the appeal.
36 The decided cases indicate that, in determining whether to exercise its discretion, the Court will look to the particular circumstances and consider various factors, that is to say, the history of the proceedings, the conduct of the parties and the nature of the litigation, the length of the
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- delay, the reasons for the delay, the consequences to the parties of the grant or refusal of the extension and the prospects of success if the extension of time is granted: Gallo v Dawson (1990) 93 ALR 479 at 480; Girando v Girando (1997) 18 WAR 450 at 454.
37 An order extending time requires some cogent reason be advanced for its exercise: Boomalli Ltd v Hake & Anor [1985] WAR 7 at 9. In order to justify a Court extending the time during which some step in procedure requires to be taken, there must be some material on which the Court can exercise its discretion: Ratnam v Cumarasmy & Anor [1964] 3 All ER 933 at 935.
38 Considerations of this kind are addressed in the affidavit of the second plaintiff sworn 4 September 2001. She states that until the handing-down of the 15 June striking-out order she and her husband had both acted as "in person" litigants with no legal representation in relation to the matter. She says that upon the handing-down of the reasons for judgment she was not sure what the effect of the orders was and whether her claim had effectively been brought to an end.
39 She goes on to say that on 26 June 2001, she delivered a bundle of materials, including the two judgments, to a proposed legal adviser. His commitments meant that he was unable to accept instructions to act on her behalf until 8 August 2001. A copy of the proposed notice of appeal was subsequently forwarded to the defendants' solicitors by letter dated 14 August 2001. The second plaintiff's legal adviser, Mr Bennett, appeared before me on the following day to advise that an appeal would be lodged on the second plaintiff's behalf.
40 Against this background, counsel for the second plaintiff submitted that the delay in instituting the appeal was due to the second plaintiff having acted in person and due to her legal adviser's lack of availability until early August. He submitted that there were no significant indications of delay or neglect on the part of the second plaintiff herself. Further, the reality was that there was no significant prejudice to the position of the defendants because at all material times the claim against them was still being prosecuted by the first plaintiff, whose claim had not been struck out.
41 In regard to the second plaintiff's prospects of success on appeal, counsel for the second plaintiff reminded the Court that the interview containing the words complained of addressed two substantial matters, namely, repeated discussion of the alleged recidivist criminal behaviour of
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- the Mickelbergs and the conduct of the Mickelberg family in asking members of the West Australian Liberal Party for a reference for the first plaintiff, Peter Mickelberg.
42 Counsel for the second plaintiff submitted that the interview in question did not delineate or seek to limit the class of persons who made the approach to members of the West Australian Liberal Party for references to those members of the Mickelberg family who had a criminal record. Counsel drew attention to those passages in the transcript of the interview in which there is a degree of ambiguity as to who is being referred to and to the use of phrases such as "the family presented a case" and "if these people had gone to members of parliament".
43 Counsel for the second plaintiff contended that considerations of this kind weighed against the determination underpinning the 15 June striking-out order that an ordinary listener would understand that the interview was concerned essentially with those members of the Mickelberg family who had criminal convictions and in respect of whom the testimonials and references were to be obtained. If the words complained of were viewed in this light, then the second plaintiff had reasonable prospects of success of appeal.
44 Counsel for the first and second defendants submitted that the explanation given for the delay was insufficient. He referred to a passage in the transcript which suggested that as at 15 June 2001 the second plaintiff clearly had in mind that she intended to appeal the ruling against her. He was unable to identify any passage indicating specifically that the second plaintiff knew of or was told about the applicable time limits. He contended, however, that if indeed the time limits were not known to her, then this was a matter which should have been mentioned in her affidavit. He argued also that she had no prospect of success on appeal.
45 Counsel for the third defendant presented similar submissions to the Court and submitted further that a lack of action on the part of a solicitor engaged or to be engaged by a litigant in the circumstances of the second plaintiff was not sufficient to excuse the delay.
46 I have given careful consideration to the submissions of the respective parties. I consider that an extension of time should be allowed to the second plaintiff. A Court should generally exercise great care in taking a step which might have the effect of depriving a party of a right of appeal. I consider that the second plaintiff has provided a satisfactory explanation for the delay. At the time the ruling against her was handed
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- down she was not represented by counsel. The matter in issue was somewhat complex and it was therefore reasonable for her to seek to obtain specialist legal advice once it became apparent that the ruling had gone against her.
47 I am not persuaded that the defendants have been subjected to any particular prejudice or disadvantage because the reality of the situation is that claims against them are still being pressed by the first plaintiff whose claim survived the striking-out application. It is quite apparent from the reasons for judgment underpinning the striking-out order that the matters in controversy, and especially the issue of identification, are matters of some complexity. Accordingly, it has to be acknowledged that the second plaintiff has some prospect of success on appeal.
48 The grounds of appeal appear in the draft notice of appeal. The draft was brought into existence and a copy provided to the solicitors for the defendants by 14 August 2001. It seems that the period of delay was effectively a period of one month. In the circumstances I have described, I do not regard this as an excessive period of delay.
49 Accordingly, I am satisfied that the time for instituting the notice of appeal should be extended until a date shortly after the handing-down of these reasons so that the solicitors for the second plaintiff will be allowed sufficient time to file and serve the notice of appeal. I will hear from the parties as to what orders are required in order to carry this ruling into effect.
50 It follows from earlier discussion that, for the sake of completeness, I must also turn my attention to some further questions. If I be wrong in my determination that the 15 June striking-out order is a final order, then the second plaintiff requires leave to appeal.
51 I am satisfied from my review of the decided cases that the criteria bearing upon the grant of an extension of time for instituting an appeal by the filing and service of a notice of appeal are equally applicable to the grant of an extension of time to apply for leave to appeal from an interlocutory order. Accordingly, for the reasons given previously, I consider that the necessary extension of time should be granted.
52 It follows from earlier discussion that it is open to me in the circumstances of the present case, where a doubt exists as to whether leave is required and as to whether leave to appeal should be granted, to utilise the power allowed to the Court by O 63A r 4. I will therefore direct that the question of whether leave to appeal be granted should be
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- heard together with the appeal. I will hear from the parties as to whether any orders are proposed in that regard.
53 In summary, then, I hold that the 15 June striking-out order is a final order with the result that the second plaintiff does not require leave to appeal. I will extend the time within which the appeal is to be instituted to a date to be fixed. For the sake of completeness, I will also hold that if leave to appeal is required, then the time within which leave is to be applied for will be extended to a date to be fixed. Further, I direct that the second plaintiff's application for leave to appeal proceed as an appeal under O 63 and be heard together with the appeal.
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