Parizian v Seven Network Limited

[2018] NSWDC 296

District Court

New South Wales

Medium Neutral Citation:	Parizian v Seven Network Limited [2018] NSWDC 296
Hearing dates:	11 October 2018
Date of orders:	18 October 2018
Decision date:	18 October 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiff’s notice of motion seeking an extension of time to commence proceedings pursuant to s 56A Limitation Act 1969 (NSW) is dismissed. (2) Costs reserved with liberty to apply. (3) The plaintiff is to file and serve any amended statement of claim (if still pursued) in 14 days, such amendments to restrict the claim to the 12-month period prior to the filing of the statement of claim. (4) The parties have liberty to bring in Short Minutes of Order concerning a timetable for the future conduct of the proceedings.
Catchwords:	TORT – defamation – application for extension of time to commence proceedings
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 65 Limitation Act 1969 (NSW), ss 14B and 56A Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 Barrett v TCN Nine Pty Limited [2017] NSWCA 304 Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90 Homsi v Nabulsi [2017] NSWDC 16 Houda v State of NSW [2012] NSWSC 1036 Noonan v MacLennan [2010] QCA 50 Pingel v Toowoomba Newspapers [2010] QCA 175 Rayney v Western Australia (No 3) [2010] WASC 83 Tsiadis v Patterson (2001) 4 VR 114 Van Garderen v Channel Seven Melbourne Pty Limited [2016] VCC 953 Wookey v Quigley (No 2) [2010] WASC 209
Category:	Procedural and other rulings
Parties:	Plaintiff: Boghos Parizian First Defendant: Seven Network Limited Second Defendant: Channel Seven Adelaide Pty Ltd
Representation:	Counsel: Plaintiff: Mr M K Rollinson Defendants: Mr M Richardson   Solicitors: Plaintiff: JN Legal Defendants: Johnson Winter and Slattery
File Number(s):	2018/56583
Publication restriction:	None

Judgment

The plaintiff’s application for extension of time

1. By notice of motion filed on 24 August 2018, the plaintiff seeks orders as follows:

1. That under s 56A Limitation Act 1969 (NSW), the limitation period for the cause of action in respect of the broadcast pleaded in paragraphs 3(a), 4(A) and 4(B)(a), and the publication via the internet website pleaded in paragraphs 3(b) and 4(B)(b), of the Amended Statement of Claim be extended until the date of filing of the Amended Statement of Claim, being 13 June 2018.

2. Such further or other order as the Court sees fit.

3. That the costs of the motion be costs in the cause.

The issues for determination

2. The plaintiff initially brought two applications. The first related to the misnomer of the first defendant, which has been corrected from “Seven Network Pty Limited”, a non-existent entity, to “Seven Network Limited”. The defendants do not object to an order under s 65(2)(b) Civil Procedure Act 2005 (NSW) substituting “Seven Network Limited” for “Seven Network Pty Limited”, although they point out that the first defendant denies publication of the matter complained of and remains the wrong entity to have been sued.

3. The sole remaining application before the court is the plaintiff’s application for an extension of time relating to the joinder of the second defendant, Channel Seven Adelaide Pty Ltd.

4. Both defendants are alleged to be publishers of the two broadcasts and of the material made available on the internet.

5. The defendants object to any order under s 65(2)(b) or otherwise for the joinder of Channel Seven Adelaide Pty Limited, and object to any extension of time permitting the commencement of proceedings against Channel Seven Adelaide Pty Limited after the expiry of the limitation period. They acknowledge, however, that this is one of many defamation claims where the multiple publication rule has the effect that, although the free to air broadcast cannot be the subject of any action, the website publication (where I understand the matter complained of may still be viewed as it is still available online) may be the subject of suit.

The proposed amendments

6. The Plaintiff filed a Statement of Claim on 20 February 2018, the last day of the limitation period for the free to air broadcast of the matters complained of (but, as noted above, not the publication remaining online, by reason of the multiple publication rule). The sole defendant was an entity described in the pleadings as “Seven Network Pty Limited”, which was asserted to be the publisher on the following bases:

1. In paragraph 2 as “the operator of the television station network called Channel Seven”; and

2. In paragraph 3 as the producer of “Today Tonight” who has caused the program to be broadcast on “the stations of the network” and the “internet website associated with the network.”

7. The causes of action are:

1. A Today Tonight promotional item broadcast on 20 February 2017;

2. The story itself, broadcast on Today Tonight on 20 February 2017 and then (and thereafter) made available on the internet at the address

8. Paragraphs 3 and 4(B) as set out in the Amended Statement of Claim are in the following terms:

“3. The Defendant has at all material times produced the television current affairs programme entitled ‘Today Tonight’ and has caused the programme to be:

(a) Broadcast to the public throughout Australia on the stations of the network, and

(b) Accessible to the public on the internet website associated with the network, entitled (‘Website’)

4. The Defendant has so caused two matters to be published of and concerning the plaintiff, as follows:

(A) …

(B) Matter B, being an item on the ‘Today Tonight’ programme, which:

(a) was broadcast on 20 February 2017 at about 6.30pm Adelaide time, and

(b) has been accessible to the public on and since 20 February 2017 on the Website.

A transcript of Matter B is annexed hereto and marked ‘B’.”

The evidence in support of the application

9. The plaintiff relies upon his own affidavit sworn on 23 August 2018, in which he sets out the circumstances in which he became aware of the matter complained of shortly after it was broadcast. He did not know anything about computers; he had to ask his sister-in-law for assistance to access the internet. She showed him a Channel Seven internet website which contained the words “© Seven Network Pty Limited”.

10. The plaintiff consulted a legal practitioner whose name he cannot recall. That legal practitioner told him that he had “three years to bring a case” and that he would need to pay $100,000 on account of the legal costs. The plaintiff consulted, or attempted to consult, a series of legal practitioners up until early January 2018, when he retained his current legal advisers. He had a conference with his solicitor and counsel on 8 February 2018 and was told that the one year limitation period would expire on 20 February 2018. Until that time, the plaintiff asserts, he did not know that the limitation period was one year, as he had been told it was three years.

11. Upon learning of this looming cut-off date, a mere 8 days away, the plaintiff instructed his solicitor and counsel to prepare and file a statement of claim prior to the expiry of the limitation period. A statement of claim was filed on 20 February 2018, which the parties agree was the last day possible to do so.

12. Unfortunately, the plaintiff identified “Seven Network Pty Limited” which is a non-existent entity. While that name may be capable of correction under s 65(2)(b), Mr Rollinson acknowledges that the identity of the second defendant does not fall within such parameters, and that any claim to join the second defendant must be brought pursuant to s 56A of the Limitation Act 1969 (NSW).

The relevant statutory provisions

13. Section 56A of the Limitation Act 1969 (NSW) provides:

“56A Extension of limitation period by court

(1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action.

(2) A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 14B to a period of up to 3 years running from the date of the publication.

(3) A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2).”

14. Section 14B Limitation Act 1969 (NSW) provides:

“14B Defamation

An action on a cause of action for defamation is not maintainable if brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.”

15. It has been stated many times the onus which lies upon a plaintiff in such an application is a heavy one to discharge: Wookey v Quigley (No 2) [2010] WASC 209 at [27]; Rayney v Western Australia (No 3) [2010] WASC 83 at [41]. The burden which must be discharged is to establish that it was “not reasonable” to commence within the limitation period: Houda v State of NSW [2012] NSWSC 1036 at [14].

16. The test is an objective one and the moving party’s evidence must deal with the whole of the limitation period: Pingel v Toowoomba Newspapers [2010] QCA 175 at [51].

17. If the plaintiff satisfies the court it was not reasonable to commence within one year then time must be extended: Rayney v Western Australia (No 3) at [50]; Noonan v MacLennan [2010] QCA 50 at [47]. The court does retain a discretion as to the length of any extension and relevant matters which go to the explanation for the delay may be considered in limited context: Barrett v TCN Nine Pty Limited [2017] NSWCA 304; the court does not otherwise have a discretion to exercise.

18. Where a plaintiff has already commenced defamation proceedings within the prescribed time, the task of establishing that it was not reasonable to commence proceedings is even more difficult, as was noted in Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90:

“[95] I agree with Beazley JA’s reasons for concluding that the primary judge did not err in refusing to make an order extending the limitation period for the appellant’s cause of action for defamation: Limitation Act 1969, s 56A. In my view it is also relevant to take into consideration in this respect that the appellant did, within the one-year limitation period prescribed by s 15 of the Limitation Act 2005 (WA), commence proceedings in respect of these publications in the Supreme Court of Western Australia by the filing of a writ of summons against the respondent on 8 May 2007. It is difficult in those circumstances to see how he could demonstrate that it was “not reasonable in the circumstances” for him to have done the same in New South Wales.”

19. Simpson J in Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 stated at [52]-[55]:

“[52] Section 56A entitles the plaintiff to an extension of time if it was not reasonable, in the circumstances that existed, to have commenced proceedings within one year of the publication of the broadcast. One can envisage circumstances in which it would not be reasonable for a plaintiff to commence proceedings within that time. One is where the plaintiff is unaware of the publication. Another is where the plaintiff is unable to identify the publisher or prove publication. (In this regard the obligations of legal practitioners under s 347 of the Legal Profession Act 2004 and the provisions of s 348 thereof are to be borne in mind.) Another circumstance may be where the plaintiff is engaged in non-litigious processes to vindicate his or her rights: see Noonan v MacLennan [2010] QCA 50 at [17].

[53] Here, it is not and could not be suggested that the plaintiff did not know the identity of Mr Hadley, or that he was the broadcaster who spoke at least some of the words she claims defamed her. Annexure A to the Statement of Claim makes it quite clear that she had actual knowledge of that fact. The only basis on which it is suggested that she did not commence proceedings against him within the time limit is that she was unaware of the nature of the defence that the defendant would file and eventually did file, and that it was not until receipt of that defence that the implication of the views attributed to the Chief Judge at Common Law, and canvassed in Rodgers, struck her legal advisors.

[54] The test posed by s 56A was described by Malcolm CJ in Rayney v Western Australia (No 3) [2010] WASC 83 as:

… a difficult hurdle for a plaintiff to overcome unless there are some unusual circumstances … and: … not a burden which is discharged by showing that it was not unreasonable to have not commenced within one year. (at [41])

[55] The plaintiff falls far short of establishing that it was not reasonable in the circumstances for her to have commenced an action against Mr Hadley within the time specified in s 14B of the Limitation Act.”

20. Two principal issues arise. The first is whether the test can be satisfied where the plaintiff’s solicitor, and not the plaintiff, was the reason for delay, and the second is whether the correct identity of the broadcaster was the subject of uncertainty or doubt.

“The sins of the solicitor”

21. Of particular relevance in the present circumstance are the observations made by O’Neill J in Van Garderen v Channel Seven Melbourne Pty Limited [2016] VCC 953 as to whether an error by a legal practitioner in defamation proceedings should constitute an explanation warranting an extension of time. O’Neill J did not consider this was the case:

“85 There is a further matter to be considered. That is, whether the sins of the solicitor (or counsel) ought to be visited upon the plaintiff. In applications for extension of time in respect of personal injury proceedings it is often said that if a plaintiff promptly consults a solicitor and does everything reasonable to provide instructions and prosecute a proceeding, otherwise leaving the conduct in the hands of his or her lawyers, the failure of those lawyers ought not lead to a refusal to extend time unless specific or general prejudice to the defendant can be shown. The availability of a cause of action against the solicitor is a relevant matter to take into consideration. I was not taken to, nor have been able to find authority on point in respect of an extension of time in defamation proceeding.

86 Although the affidavit material does not critically examine the point, it would appear Dr van Garderen had done everything reasonable in the prosecution of the proceeding. She sought advice promptly and provided instructions from time to time as were needed. She gave instruction finally to issue. That aside, she left the conduct of the proceeding in the hands of her solicitor and counsel. There is nothing in the affidavit of Ms MacRae to suggest that there was any particular difficulty in obtaining instructions, although given the nature of the application, evidence to that effect would not be expected.

87 In Pingel, Fraser JA said that the considerable delays on the part of the plaintiff’s solicitor and counsel “for present purposes” must be attributed to the respondent. In that case, the Court refused to extend the time in circumstances where the delay in bringing proceedings largely was attributed to the failures of the plaintiff’s solicitors and counsel.

88 The Act provides a drastically short limitation period within which a defamation proceeding may be brought. The rationale for such a period is that the repair to reputation caused by a defamation should be acted upon promptly. Further, while the legislation provides, even encourages parties to undertake negotiations, nonetheless the test to obtain an extension of the limitation period is a harsh one and difficult for a litigant to overcome. All of those matters point to different policies underlying the limitation legislation as applied to defamation proceedings. In personal injuries litigation, it may be just and reasonable to grant an extension of time when a litigant has done no more than place him or herself in the hands of a solicitor who has neglectfully failed to issue within a limitation period. That concept does not exist in applications for extension in defamation proceedings.”

22. There are additional reasons for taking this view. O’Neill J’s observations as to the approach taken in personal injury proceedings where a solicitor has been dilatory (citing the relatively old decision of Tsiadis v Patterson (2001) 4 VR 114) are not necessarily applicable today. Any presumption of indulgence to a plaintiff whose solicitor is speedily displaced where there are legislative requirements for a plaintiff to commence and conduct proceedings expeditiously, as is the case in relation to the Motor Accidents Compensation Act 1999 (NSW) where the solicitor’s failure to file proceedings may, if not fully and satisfactorily explained, be fatal (for a typical decision of this kind in this court, see Homsi v Nabulsi [2017] NSWDC 16).

23. Nor is it the case that the plaintiff’s lack of awareness of the limitation period until shortly before it expires, due to incompetent legal advice, constitutes grounds for sympathy.

Where the identity of the defendant is unknown

24. Mr Rollinson drew my attention to what was asserted to be the misleading copyright notice onscreen, which did not refer to the Adelaide broadcaster at all, but to “Channel 7”. The plaintiff was confronted by reporters from “Channel 7”, found the program on the Channel 7 website and made complaints to Channel 7 staff. He thought he was dealing with Channel 7, not another company in Adelaide. He did not see the original broadcast (which was in Adelaide) and this was all he had to go on.

25. There may be an exception to the generally harsh principles of the limitation test if the plaintiff is unable to ascertain the identity of the defendant and is obliged to make very extensive inquiries, or bring an application for preliminary discovery (for example, an anonymous publication).

26. However, this is not a case where the legal practitioners consulted by the plaintiff’s solicitors would have had difficulty in ascertaining the identity of the broadcaster. This was not a case where the defendant hid its identity behind a pseudonym or an anonymous publication. According to the evidence, Today Tonight (which has not been broadcast in New South Wales since 2014) is only broadcast in Adelaide and Perth and it was clear from the website that the show had gone to air in Adelaide.

27. Mr Richardson referred me to the affidavit of Mr Kevin Lynch which sets out the publicly available material confirming the role of Channel Seven Adelaide Pty Limited as the broadcast licensee for the Adelaide licensing area (the Channel Seven Sydney Pty Limited broadcast area is for publications broadcast from Sydney).

28. In addition, the Australian Communications and Media Authority (ACMA) website links provide commercial television broadcasting licence details. This website records Channel Seven Adelaide Pty Limited as a licensee for Seven, Seven Two and Seven Mate in Adelaide (see paragraphs 2-3 of the affidavit of Mr Lynch) and the annexures thereto.

29. Mr Lynch also sets out that the first result for any Google search of Channel Seven licensee directs the searcher to the ACMA material referred to above. There are also the many defamation judgments reported on and Lexis Advance databases (and for that matter, all legal databases reporting these decisions) recording “Channel Seven Adelaide Pty Limited” as a defendant in defamation proceedings for broadcast under the Today Tonight mantle.

30. All this additional information should have alerted the legal representatives for the plaintiff to the identity of the correct defendant.

The application of these principles to the evidence

31. As paragraph 5 of the plaintiff’s affidavit makes clear, the plaintiff was aware of the broadcast after the time of publication, He sought legal advice relatively promptly. He knew about the limitation period before it expired. However, he sued the wrong defendant.

31. I am satisfied that at all relevant times the plaintiff knew that he had been very seriously defamed by a broadcast which was still available online, had legal advice and gave instructions to, and did, commence proceedings within time. These matters make it difficult for the plaintiff to assert that it was not reasonable for him to commence proceedings against the present defendants within the first year.

32. Taking all of the above into account, the plaintiff cannot establish that it was not reasonable to identify Channel Seven Adelaide Pty Limited as the broadcaster of Today Tonight at any time within the first twelve months after publication.

33. The result is that the plaintiff is not entitled to bring proceedings against the second defendant for the free to air broadcast on 20 February 2018 and any subsequent online publication up to the date of joinder of the second defendant as a party to these proceedings, which occurred on 7 June 2018.

34. However, by operation of the multiple publication rule, that portion of the claim relating to publication for 12 months prior to the filing of the statement of claim still remains (subject to proof of downloading, which should be particularised in any amended statement of claim). I have provided for this in the orders set out below.

Conclusions concerning the application

36. The plaintiff has failed to satisfy the very harsh requirements necessary for an extension of time under s 56A Limitation Act 1969 (NSW), in that he cannot establish that it was “not reasonable in the circumstances for the plaintiff to have commenced” the action within the one year limitation period. The extension of time is accordingly refused.

37. This will require the plaintiff to file an Amended Statement of Claim identifying the period of time over which either defendant is asserted to be liable for online publication, together with particulars of such publication to third parties by downloading. I have provided for this in my orders below. I note, however, that the evidence provided in support of this application suggests that any claim against the first defendant is hopeless, so I have made orders of a general nature to accommodate all amendments the plaintiff may need to make in relation to the identity of the defendants.

Costs

38. As I was not addressed on costs, I have reserved all costs issues.

Orders

1. Plaintiff’s notice of motion seeking an extension of time to commence proceedings pursuant to s 56A Limitation Act 1969 (NSW) is dismissed.

2. Costs reserved with liberty to apply.

3. The plaintiff is to file and serve any amended statement of claim (if still pursued) in 14 days, such amendments to restrict the claim to the 12-month period prior to the filing of the statement of claim.

4. The parties have liberty to bring in Short Minutes of Order concerning a timetable for the future conduct of the proceedings.

**********