Ritson v Gay & Lesbian Community Publishing Ltd & Ors
[2012] NSWSC 483
•18 May 2012
Supreme Court
New South Wales
Medium Neutral Citation: Ritson v Gay & Lesbian Community Publishing Ltd & Ors [2012] NSWSC 483 Hearing dates: 4 May 2012 Decision date: 18 May 2012 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1)Paragraphs 5 to 26 of the Plaintiff's statement of claim be struck out.
(2)The Plaintiff be granted leave to file an amended statement of claim, such amendments to be restricted to:
(i)pleading a cause of action in defamation in respect of the publication described as the second matter complained of in the statement of claim for a publication period from 30 December 2010 to 11 February 2011;
(ii)the inclusion of a paragraph in the form of paragraph 23A of the proposed amended statement of claim handed up in Court on 4 May 2012; and
(iii)the reformulation of paragraphs 24 to 26 of the statement of claim to reflect the relief claimed against the first defendant and the fourth defendant for the remaining causes of action in defamation pleaded against them.
(3)Any such amended statement of claim to be filed and served on or before 8 June 2012.
(4)Prayers 1 to 3 of the Plaintiff's notice of motion filed 14 February 2012 be otherwise dismissed.
(5)The Plaintiff pay the Third and Fourth Defendants' costs of the Plaintiff's notice of motion filed 14 February 2012.
(6)There be no order as to costs as between the Plaintiff and the Second Defendant in respect of the Plaintiff's notice of motion filed 14 February 2012.
(7)The proceeding stand over to 9.00 am before the Registrar in Common Law on 15 June 2012.
Catchwords: PROCEDURE: - extension of time - defamation proceedings - whether "not reasonable" to commence proceedings within one year of publication of communication - proceedings in other fora - implied undertaking not to use documents produced in those proceedings - discretion to determine period of extension "up to" three years -- costs. Legislation Cited: Costs in Criminal Cases Act 1967
Defamation Act 2005
Limitation Act 1969, ss 14B, 56A, 56B, 56D
Privacy and Personal Information Protection Act 1998, s 62Cases Cited: Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676
Barach v University of New South Wales [2011] NSWSC 1327
Carey v Australian Broadcasting Corporation [2010] NSWSC 709; (2010) 177 NSWLR 136
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Lakaev v Denny [2010] NSWSC 1480
Noonan v McClellan [2010] QCA 50; [2010] 2 Qd R 537
Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175
QQ v Commissioner of Police, New South Wales Police Force [2011] NSWADT 54
QQ v Commission of Police, New South Wales Police Force [2011] NSWADT 275
Rayney v The State of Western Australia [No 3] [2010] WASC 83
R v Ritson; R v Stacey [2010] NSWDC 160
Wookey v Quigley [No 2] [2010] WASC 209Category: Interlocutory applications Parties: Brendan Paul Ritson (Plaintiff)
Gay and Lesbian Community Publishing Ltd (First Defendant)
Gary Burns (Second Defendant)
Stephen Pickells (Third Defendant)
Sydney Educational Broadcasting Ltd (Fourth Defendant)Representation: Counsel:
Mr R D Glasson (Plaintiff)
Mr M F Richardson (First Defendant)
No Appearance (Second Defendant)
Mr J Hmelnitsky (Third and Fourth Defendants)
Solicitors:
Mitchell Lawyers (Plaintiff)
Banki Haddock Fiora (First Defendant)
Middletons (Third and Fourth Defendants)
File Number(s): 2011/417650
Judgment
The substantive issue raised by this notice of motion is whether the plaintiff is entitled to an extension of time to sue the second to fourth defendants for defamation in respect of various publications that occurred in April 2009.
Procedural background
On 30 December 2011 the plaintiff filed a statement of claim. He sued four defendants. The first defendant, Gay & Lesbian Community Publishing Limited, is said to be the proprietor of the publication known as the "Sydney Star Observer". The fourth defendant, Sydney Educational Broadcasting Limited, is said to be the proprietor of a radio program known as "The Queer Noise" which is broadcast on radio station 2SER. The third defendant, Stephen Pickells, is pleaded as being a broadcaster and having some role with the fourth defendant. The second defendant, Gary Burns is pleaded as being a "self-proclaimed gay rights activist'" and the author of certain defamatory emails.
The statement of claim identifies nine defamatory publications in respect of which the four defendants are said to be either separately, or in some cases jointly, responsible for. Adopting the order they appear in the statement of claim they are identified in [5], [6], [35], [38], [36] and [37] of this judgment. It also pleads a cause of action against each of the defendants for breaching what is said to be an alleged "obligation of confidentiality arising at common law and/or an equitable obligation of confidentiality". The arguments on the motion did not address the adequacy of that part of the pleading.
On 14 February 2012 the plaintiff filed a notice of motion seeking an extension of time to bring the causes of action in defamation and leave to amend the statement of claim. Filed with the motion was a proposed amended statement of claim. Another version of the proposed amended statement of claim was provided to me at the hearing of the motion.
I was advised at the hearing that the plaintiff no longer sought an extension of time in respect of any cause of action against the first defendant. I was advised that he was not "pressing" his causes of action in respect of an article published in the Star Observer on 22 April 2009 (the first matter complained of) nor in respect of an article published on the internet on the same day (the sixth matter complained of). As I will explain the sixth matter complained of concerned both the first defendant and Mr Burns. I have acted on the basis that the plaintiff is not "pressing" this aspect of the pleading against both of them.
The remaining defamatory publication said to have been made by the first defendant was the second matter complained of, defined in the pleading as being a statement published on its website from 21 April 2009 until "at least" 7 February 2011. At the hearing, I was advised that the plaintiff proposed to amend the time frame for his publication so that it became 31 December 2010 to 11 February 2011. This period is entirely within the 12 month limitation period and thus the plaintiff does not need an extension of time to sue upon it. Not surprisingly the first defendant was content with this although it pressed its position in relation to costs.
At the conclusion of the hearing I made various orders concerning the position as between the plaintiff and the first defendant, including as to costs (see my ex tempore reasons of 4 May 2012). I did not at that time make an order granting leave to the plaintiff to amend the time frame in respect of the second matter complained of. I indicated that I would incorporate that leave into the orders concerning the balance of the notice of motion. It is reflected in order 2(i).
What remained of the plaintiff's notice of motion was his application to seek an extension of time for the causes of action pleaded against the second, third and fourth defendants in defamation arising out of the third to fifth and seventh to ninth matters complained of and his application to amend the statement of claim.
Mr Burns did not appear at the hearing of the notice of motion. However, he was on notice of the relief sought by the plaintiff. Tendered before me was an email from the second defendant to the plaintiff's solicitors dated 21 March 2012. It responded to that solicitor's letter to Mr Burns of 15 March 2012 providing him with a copy of the plaintiff's notice of motion filed 14 February 2012 and affidavit in support. The substantive part of his response was that:
"I will leave it up to his Honour hearing this matter to determine whether I have defamed your client with private email exchanges between various official parties.
I will "COP" his Honour's decision sweet."
I am treating this email as Mr Burn's submitting to the orders of the Court concerning the plaintiff's notice of motion.
Extensions of time
Sections 14B and 56A of the Limitation Act 1969 provide:
"14B Defamation
An action on a cause of 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.
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 three 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)."
Section 56D enables an order under s 56A to be made even though the limitation period has already expired.
Section 56A in this form was introduced as part of a package of amendments introduced at the time of enactment of the Defamation Act 2005 (see Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [26] per Simpson J). Similar provisions are to be found in all states and territories, although there are differences (see Rayney v The State of Western Australia [No 3] [2010] WASC 83 at [65] to [66], per Martin CJ). I have been referred to a number of first instance level decisions of this Court concerning these provisions (Ahmed, Carey v Australian Broadcasting Corporation [2010] NSWSC 709; (2010) 177 NSWLR 136; Lakaev v Denny [2010] NSWSC 1480 and Barach v University of New South Wales [2011] NSWSC 1327) as well as first instance decisions of other state Supreme Courts (Rayney, Wookey v Quigley [No 2] [2010] WASC 209) and two decisions of the Queensland Court of Appeal (Noonan v McClellan [2010] QCA 50; [2010] 2 Qd R 537; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175). For purposes of this matter it is only necessary for me to note four points.
First, the burden imposed upon a party applicant seeking an extension is a heavy one. It is not sufficient for them to prove that it was reasonable for them to delay commencing proceedings. Rather they are driven to demonstrating that it was not reasonable for them to start within the 12 month period (Ahmed at [39]). Not surprisingly this has been described as a "difficult hurdle" (Rayney at [41]) and one which can only be satisfied in "relatively unusual circumstances" (Noonan at [15], per Keane JA).
Second, the test is an objective one requiring a consideration of the circumstances "as they appear objectively to the court" (Noonan at [20], per Keane JA). Ignorance on the part of the plaintiff as to the time limits specified cannot afford a reasonable basis for not commencing proceedings (Noonan at [22] per Keane JA). However, this does not mean that the plaintiff's motivations or thought processes are irrelevant (Carey at [46] to [48]). In Carey McCallum J approved the following as a statement of the correct approach (at [48]):
" .... the test requires attention to the plaintiff's actual reasons, as they are a vital part of the circumstances pertinent to whether it was reasonable or not to bring to the proceedings within the nominated period."
In Carey the applicant for an extension asserted that he did not have funds available to him to obtain legal advice in relation to proceedings against the ABC. It seems that he was subject to an asset freezing order which restricted the amount he could expend to $4000 a week. McCallum J was sceptical as to whether that prevented him from obtaining advice but, in any event, considered that it was open to him to approach the Court or the "Receiver" (of the Westpoint companies) to vary the order sought (at [50] - [51]). However, McCallum J also found that the application of the test in s 56B did not differentiate between those plaintiffs who had access to legal advice and those who did not (at [54]). This highlights a tension in the application of s 56B(2). On the one hand the test involves the application of an objective test but on the other it is to be applied "in the circumstances". To what extent do the "circumstances" embrace matters subjective to the plaintiff's position? In Carey at [54] one subjective "circumstance" of a plaintiff, namely impecuniosity, was considered irrelevant.
One further aspect of Carey should be noted. At [56] McCallum J noted a submission that it was not reasonable for Mr Carey to have commenced defamation proceedings because he had initiated a complaint via the ABC's internal complaints procedure. McCallum J rejected that contention on the basis that "there is no evidence that it was a reason that Mr Carey in fact took into account" (at [56]). On this approach a matter or circumstance cannot lead to a conclusion that it was "not reasonable" to commence proceedings unless it was known to and operative upon the party seeking an extension. While that was no doubt the correct approach to the postulated circumstance in Carey I doubt that it is always the case. In this case there was a significant impediment to the commencement of defamation proceedings, namely the restrictions on the use of documents obtained in the course of proceedings discussed in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125. It seems that for part of the period in which the plaintiff asserts it was not reasonable to commence he was not aware of this impediment. However, even if, as here, a plaintiff is unaware of that restriction its existence seems to me to be a matter that informs the application of the test posed by s 56B. If the section does not place those who do not have access "to legal advice in a separate class of being excused from the limitation period that applies to those who do" (Carey at [54]) then an objective "circumstance" preventing the commencement of proceeding applies to all members of that one class who seek an extension.
Two examples of where the statutory test may be satisfied is where the plaintiff is unaware of the publication or the identity of the publisher (Ahmed at [52]). Walmsley AJ granted an application for an extension on the former basis in Barach. In Noonan at [17] Keane JA considered a case where the plaintiff was not able to establish the extent of the defamation or did not have the evidence necessary to establish their case during the year after the publication as examples that may fall within the provision.
One particular category of "circumstance" that has been considered in the cases is where the potential plaintiff has pursued other forms of redress within the statutory period. In Noonan at [16], Keane JA considered that the pursuit of an alternative means of redress provided for under the Defamation Act 2005 (Qld) in a 12 month period may lead to the conclusion that it was "unreasonable to disrupt those processes and to incur needless expense by commencing proceedings". However, such a contention failed on the facts in Pingel. In Noonan the pursuit of an internal grievance procedure with the University was not considered sufficient to lead to a conclusion that it was not reasonable to commence proceedings against two employees of the University (see Noonan at [23], per Keane JA). According to Chesterman JA at [59] the mere preference for the private remedy did not make it unreasonable for him to commence legal proceedings.
Similarly in Carey, even if Mr Carey had considered it to be a reason for not commencing, McCallum J did not consider that his engagement of the ABC's internal complaints procedure afforded any justifiable reason not to commence defamation proceedings (Carey at [57]).
Third, once the plaintiff has met the threshold to invoke s 56A(2) it does not follow that they obtain an extension for a further two years from the date of publication. In Ahmed at [28] Simpson J stated that once it is demonstrated that it was not reasonable to commence proceedings within time then there is no discretion in the Court to extend the limitation period. Her Honour stated that an "[e]xtension, in those circumstances, is mandatory" (see also Rayney at [50]). However her Honour did not address the period of the extension. Subsection 56A(2) refers to an extension being granted to a period of "up to" three years.
In Noonan Chesterman JA agreed that there was an obligation to extend time but stated that there was a "discretion" as to its length (at [47]):
" ... The subsection is unusual. It requires a court to extend time if it be satisfied that the prescribed pre-condition has been fulfilled. The Court has no discretion in the matter. If so satisfied it must extend time. However, there is a discretion as to the length of the extension to be granted which, in any event, may not exceed three years from the date of the defamatory publication."
His Honour continued at [66], in obiter:
" ... Assuming the court was satisfied of what s 32A(2) required, time had to be extended. The length of the extension was a matter for discretion. It would not have been a proper exercise of discretion to extend time beyond the period within which it was thought unreasonable to have sued. In this case that would have produced an extension of time of six months, to October 2008. Such an extension would not assist the respondent who did not commence proceedings until a further eight months had elapsed." (emphasis added)
In Lakaev at [19] Fullerton J, referred to these passages from Noonan (and a similar statement in Pingel at [34], per Fraser JA). Her Honour described the function vested in the Court of selecting a period to extend "up to a period of three years" as involving the exercise of a discretion (at [16]).
The language of s 56B(2) does not readily lend itself to being described as a discretion in any respect. However, it may be that the discussion in the above cases used the phrase discretionary in the sense of involving a normative judgment as to the period of extension. Chesterman JA in Noonan at [66] stated that the extension allowed could not extend beyond the period in which it was unreasonable for the plaintiff to commence proceedings. If this aspect of the function conferred by s 56B(2) was discretionary that would constitute the outer limit of the period that could be fixed. On that approach a shorter period might be selected if, say, the prospective defendant could demonstrate the occasioning of prejudice in the interim. However, if this aspect of s 56B(2) only involves a normative judgment then the period identified by Chesterman JA in Noonan is not the outer limit but the particular point to which the period of extension "must" be granted. In that event a question might arise as to whether any particular prejudice to the prospective defendant arising from the extension is one of the "circumstances" that must be considered in determining when it ceased to be "not reasonable" to commence. It is not necessary for me to attempt to resolve these matters on this application.
Fourth, it is necessary to consider the decision in Wookey in detail as the third and fourth defendants placed particular emphasis on that decision. The plaintiff in Wookey commenced defamation proceedings on 27 January 2009 in respect of certain publications which included eight letters that had been sent to her employer, the Australian Government Solicitor ("AGS"), on or about 10 December 2008 (at [4] to [5]). On 14 January 2010 the plaintiff's solicitors obtained, via non-party discovery, copies of other communications sent to AGS by the defendant including communications between 13 January 2009 and 21 January 2009 (at [2] and [22]). On 17 March 2010 the plaintiff sought an extension of time and leave to amend their pleading by adding a cause of action in defamation arising out of those additional publications.
Martin J refused the application for extension. In relation to the communications dated 19 and 21 January 2009, his Honour found that having obtained the material on 14 January 2010 and assessed its significance as at 15 January 2010 it was not reasonable to delay commencing fresh proceedings beyond the expiry of the 12 month period (at [51] to [56]). For the publications in respect of which time had already expired, his Honour found that they should have been obtained via an application for non-party discovery at an earlier point in the litigation (at [82] to [86]).
Mr Hmelnitsky for the third and fourth defendants points to the outcome in this case as indicative of the high burden that is imposed on a litigant who discovers material late and seeks an extension. In essence he submits that nothing short of extreme urgency is required which may only accommodate a few days at most in taking action.
In the context of that submission I make three observations about the decision in Wookey. First, while the case reinforces the need for expedition in the pursuit of applications to extend time it is not authority for any proposition that a plaintiff must move within a matter of days upon becoming aware of defamatory material just prior to the expiry of the limitation period. Each case will turn upon its own "circumstances". Second, an important consideration in Wookey was the fact that, at the time the further publications were or should have been discovered, the plaintiff had already commenced the defamation proceedings against the alleged defamer. The plaintiff was thus armed with the means of taking urgent action (see Wookey at [80]). Third, it is not apparent from the judgment whether there was, or needed to be, any consideration given to the obligation described in Hearne at [96] (per Hayne, Heydon and Crennan JJ), as inhibiting the plaintiff in that case from using the material obtained via non-party discovery from commencing fresh proceedings against the same defendant. As I will explain an impediment of that kind existed in this case.
Factual background
The plaintiff was a member of the New South Wales Police Force from 21 December 2001 to 10 March 2011. On 24 September 2006 he was on duty at Surry Hills Police Station. It was alleged that he disclosed private information held by the New South Wales Police Force to a person in custody. The plaintiff was accused of stating to that man "you're rooting a bloke", being a reference to his trans-gendered partner.
The plaintiff and another officer were charged with an offence under s 62(1) of the Privacy and Personal Information Protection Act 1998 in respect of the disclosure of that other person's gender.
On 12 February 2009 the plaintiff and the other officer were found guilty by a magistrate. On 7 April 2009 they were convicted and sentenced to perform 125 hours of community service. They immediately lodged an appeal to the District Court against their conviction and sentence.
The statement of claim alleges that at some point between February and April 2009 the plaintiff was suspended from duty without pay. The plaintiff subsequently lodged a "hardship application" with his employer. Pay was approved at the equivalent of 51% of his salary per fortnight. It is pleaded that the facts and circumstances surrounding the hardship application were obtained by Mr Burns and disseminated to others.
I will briefly describe the defamatory publications as pleaded in the statement of claim. None of the defendants have yet had the opportunity to plead to the alleged publications.
On 9 April 2009 Mr Burns sent an email to senior officers within the New South Wales Police Service referring to the plaintiff's conviction. It was highly critical of him. This email is the third matter complained of in the statement of claim. He is said to have sent another email to those senior officers on 16 April 2009 (the fourth matter complained of) as well as emails to addresses associated with various state government politicians (the fifth matter complained of).
On 17 April 2009 the fourth defendant broadcast on its programme "The Queer Noise" a story concerning the plaintiff's conviction (the seventh matter complained of). Amongst other matters, it asserted that upon being advised of her gender, the man in custody had severely assaulted his partner. It reported comments from a police superintendent that she did not want the plaintiff to return to Surry Hills Police Station.
On the same day the third defendant, Mr Pickells, sent an email concerning the plaintiff and his conviction to an email address associated with the New South Wales Police (the eighth matter complained of). Also, on 17 April 2009, Mr Burns sent the same or similar email to the electorate office of a state member of parliament as well as to senior police officers (the ninth matter complained of). The contents of those emails are said to be similar to the radio broadcast by the fourth defendant.
As I have stated the statement of claim pleads that on 22 April 2009 the Star Observer published an article concerning the plaintiff's conviction. Also, on 22 April 2009, the second defendant made a blog entry on an article published on the internet by the first defendant which is said to be defamatory. Part of the blog entry is said to include information concerning his hardship application. He is alleged to have made a further blog entry on 5 May 2009. The internet article and the two blog entries constitute the sixth matter complained of.
At some point in 2009 the plaintiff commenced proceedings against the Commissioner of Police under the Privacy and Personal Information Protection Act in the Administrative Decisions Tribunal (the "ADT proceedings"). Various interlocutory decisions made during the course of those proceedings are annexed to his affidavit of 2 May 2012. A decision dated 16 March 2011 indicates that one of his claims of breach of privacy concerned the disclosure of his suspension status and remuneration to a third party which was said to have been published on a newspaper website by the third party (QQ v Commissioner of Police, New South Wales Police Force [2011] NSWADT 54 at [3]).
The plaintiff's appeal against his conviction was initially set down for hearing on 16 November 2009. It was adjourned until April 2010.
On 24 March 2010 the plaintiff obtained access to documents produced in response to summonses issued in the ADT proceedings. This material revealed to him the existence of the seventh to ninth matters complained of, ie the broadcast on 17 April 2009, the email of 17 April 2009 from the third defendant and the email of the same date from the second defendant. As this material was obtained under compulsion the plaintiff was under an obligation not to use it for any purpose other than the ADT proceedings without the leave of the ADT (Hearne).
The plaintiff's appeal from his conviction was heard on 10 and 11 May 2010. On 30 July 2010 his appeal was upheld, his conviction was quashed and the orders of the magistrate were set aside (R v Ritson; R v Stacey [2010] NSWDC 160). His affidavit records that the District Court found that there was no prima facie case.
On 3 August 2010 the plaintiff's suspension from duty was revoked. On 5 August 2010 he provided instructions to his solicitor to pursue potential causes of action for defamation. However, it needs to be borne in mind that he had on 26 June 2009 written to the first defendant complaining about its print and internet articles concerning him. He stated then that he was "considering the institution of legal proceedings in respect of the publication of this false and slanderous statement about me".
The plaintiff pressed for production of further documents in the ADT proceedings. On 6 August 2010 further material was produced and inspected by the plaintiff. It included the emails from Mr Burns that are the third, fourth and fifth matters complained of.
The plaintiff sought a costs certificate from the District Court. It was granted on 18 March 2011.
At some point the plaintiff gave the Commissioner notice that he would be seeking leave from the ADT to be relieved from his obligation to only use the documents that were produced in answer to the summonses for the purposes of the ADT proceedings. The parties before me proceeded on the basis that notice was given some time around late August 2011. The application was opposed by the Commissioner. It was heard on 17 October 2011.
On 21 November 2011 the ADT published its judgment on that application (QQ v Commission of Police, New South Wales Police Force [2011] NSWADT 275). The ADT granted the applicant leave to use the documents produced pursuant to summons issued in the proceedings in the "anticipated proceedings in the Supreme Court". It appears from [2011] NSWADT 275 at [7] that that included the claims pleaded in the statement of claim.
The plaintiff states that on the next day, ie 22 November 2011, the ADT proceedings were "finalised". No further explanation was given as to what that involved.
The Plaintiff's Explanation - 3rd to 5th and 7th to 9th matters complained of
In his affidavit sworn 13 February 2012, the plaintiff stated that he was not aware of the seventh to ninth matters complained of until he inspected documents produced on summons to the ADT on 24 March 2010. He also stated that he was not aware of the third to fifth matters complained of until he inspected documents produced on summons to the ADT on 6 August 2010. This evidence was not challenged.
In his affidavit of 2 May 2012 the Plaintiff addressed the delay in applying to the ADT for leave to use the documents to commence proceedings in defamation. He describes his efforts to obtain from the District Court a certificate under the Costs in Criminal Cases Act 1967. As I have stated that was granted on 18 March 2011. The plaintiff then refers to proceedings he commenced in the Supreme Court against the New South Wales Police Force for prerogative relief on 10 March 2011 and for malicious prosecution on 7 June 2011. He then states:
"Thereafter, I sought permission to use the documents produced in answer to the summons to produce in the ADT so that I could use the documents for the purpose of commencing these proceedings. There was some delay in applying for a release from the implied undertaking as the issue had not been a matter that my solicitor had previous experience in seeking and I verily believe that he undertook extensive research and preparation before formally making the application. A timetable was set by the ADT to do so and ultimately, a hearing took place in the ADT on 17 October 2011. Again, the judgment was reserved. On 21 November 2011 the ADT found in my favour and granted me permission to use the documents.
...
As information and developments transpired as disposed above, I conferred with my solicitor and respective counsel, particularly with respect to the prospective defamation claim and various causes of action available to me. This process was difficult and time-consuming and often required further consultation with counsel, subject to his availability. I was awaiting vindication by the District Court in relation to my appeal and my costs application to ascertain the court's condemnation of the manner in which I had been prosecuted. Such vindication in my view, had a bearing upon the comments published by the First Defendant and my reputation."
Although this part of his affidavit seeks to explain the delay in applying to the ADT to use the documents, it is difficult to identify what period of delay the plaintiff is referring to. The plaintiff does not state when it was that he discussed with his solicitor making the application to the ADT. He does not specify over what period the solicitor undertook the "extensive research and preparation". If the delay that is being addressed in this explanation is the period between first identifying the allegedly defamatory material and applying to the ADT then it is a period of in excess of sixteen months in the case of the third to fifth matters complained of (24 March 2010 to late August 2011) and over 12 months in respect of the seventh to ninth matters complained of. If the period of delay being described is the delay between the overturning of the plaintiff's conviction and the application to the ADT then it is a period in excess of twelve months (early August 2010 to late August 2011). If the delay referred to is the period between obtaining a costs certificate from the District Court in relation to his appeal and applying to the ADT then it is still a period of delay of in excess of five months. All of these periods need to be considered in the context of a statutory limitation period of 12 months with very limited scope for an extension of time.
To the extent that the plaintiff asserts that he was waiting for "vindication" in the form of his application for the costs of his criminal prosecution then I do not see any connection between that matter and the making of an application to the ADT for leave to use the material produced on summons for other proceedings. The connection between any condemnation of the "manner in which [he] had been prosecuted" and the various publications was not explained and is not apparent to me. The various publications made reference to the fact of his conviction but there was no discussion of the manner of his prosecution.
I am also doubtful that the need to obtain "vindication" via the appeal from his conviction justified any delay in applying to the ADT for leave to use the material produced on summons in defamation proceedings. As at 24 March 2010 the 12 month period was just about to expire. The hearing of the appeal against conviction was imminent. The plaintiff was clearly contemplating some form of action as he had already foreshadowed that in his letter of 26 June 2009 to the first defendant. The precise connection between overturning the conviction and the commencement of defamation proceedings was not articulated. Many of the statements the plaintiff complains about say much more than the bare fact that he was convicted. In any event, it was open to him to apply for leave to use the material concerning the seventh to ninth matters complained of and then only file defamation proceedings if his appeal against his conviction was successful.
Consideration - 3rd to 5th and 7th to 9th matters complained of
I will first address the material concerning the seventh to ninth matters complained of. As I have stated the plaintiff learnt of their existence on 24 March 2010. Mr Glasson of counsel for the plaintiff submits that in, respect of these matters complained of, then, at least until 24 March 2010 s 56A(2) is satisfied in that it was not reasonable for the plaintiff to commence an action in respect of publications of which he was not aware (nor should have been aware: cf Wookey at [82] to [86]). I agree with that submission. Counsel for the third and fourth defendants, Mr Hmelnitsky, did not submit to the contrary.
The balance of the period between the discovery of these publications and the expiry of the limitation period of twelve months is approximately three and a half weeks (being 24 March 2010 to 16 and 17 April 2010). From that time until 21 November 2011 the plaintiff was subject to an obligation to only use them for the purposes of the ADT proceedings. However, as the events demonstrated, he could have applied to the ADT to use them to commence defamation proceedings.
There is no evidence as to whether, as at 24 March 2010, the Plaintiff was aware of the impending 12 month time limit, the restriction imposed on him to only use the material obtained via summons in the ADT proceedings or the ability to apply to the ADT to be relieved of that obligation. For the reasons I have outlined I consider that an assessment of whether it was not reasonable to commence proceedings by 16 April 2010 requires an objective consideration of the position of a litigant faced with those circumstances (and the impending hearing of the appeal against those convictions). Such a litigant should be imputed with knowledge of those matters at least where he is legally represented and potentially where he is not (Carey at [54]). The litigant should be allowed a short period of time to take advice and make an expeditious application to the ADT for release of the documents. I expect that such an application would have been opposed by the Commissioner, as it was in 2011.
When the ADT heard the matter in 2011 it reserved for a period of just over a month. Mr Htemnilsky submitted that I would not infer that it would have reserved for the same period if an application had been made prior to the expiry of the 12 month period. He submitted that the hypothetical litigant in the plaintiff's position would have been obliged to inform the ADT of the impending expiry of the limitation period. I agree but they would have also advised the ADT of the power to extend that period.
In the face of opposition from the Commissioner of Police, I would have expected the ADT to have reserved its decision. It was not a straightforward application and would have required some consideration. Mr Hteminslky relied on the approach in Wookey. He contended that the time allowed for all the steps that needed to be taken from the time of discovering the existence of the seventh to ninth matters complained should only be a matter of days. I have already discussed the limitations on relying on the outcome in Wookey. Further, unlike the plaintiff in Wookey who already has an existing pleading based upon a similar publication at the time they received the documents in question, some modest amount of time would have to be allowed to the plaintiff upon the receipt of a judgment from the ADT to formulate a pleading.
Otherwise I do not consider that the fact the ADT proceedings were on foot had any bearing on whether the institution of defamation proceedings was not reasonable. The defendant to those proceedings was different to the defendants to these proceedings. The subject matter of the ADT proceedings concerned the release of information about the plaintiff. The material the subject of complaint in those proceedings had only a small area of overlap with the third to fifth matters complained of.
I am also doubtful as to whether the fact that the plaintiff's conviction was the subject of an unresolved appeal was a factor that rendered it not reasonable to commence defamation proceedings but in any event that impediment was removed by 30 July 2010.
After making an allowance for taking advice, the making of an application to the ADT, the opposition by the Commissioner, the need for the ADT to reserve judgment and a short period thereafterwards to formulate a proper pleading, the result is the period in which it was not reasonable to commence extends beyond 16 and 17 April 2010.
This conclusion is sufficient to satisfy an aspect of s 56B(2). However by itself it does not assist the Plaintiff. I have discussed above at [21] to [25] the approach that should be adopted if the Court were to conclude that it was not reasonable to have commenced an action within one year of publication. In summary, the limitation period should not be extended beyond the point at which it ceased to be not reasonable in the circumstances for the plaintiff to have commenced an action. Applying that approach and assuming the existence of the conviction was irrelevant to whether or not to commence, the period in which it was not reasonable to commence would not extend beyond 1 July 2010. A period of three and half months is more than sufficient for a party in the position of the plaintiff to have applied to the ADT, argued a contested application and formulated a proper pleading. If, contrary to my doubts, this assessment should include time awaiting the outcome of the appeal from his conviction then the latest date that I would have extended the limitation period in respect of the seventh to ninth matters complained of is 1 September 2010.
The plaintiff's notice of motion seeks an extension of time to the date he filed his statement of claim, namely 30 December 2011. An extension of time to an earlier date is of no use to him. As I have concluded that I would not extend time beyond 1 September 2010 it follows that I will decline to make that order in relation to the seventh to ninth matters complained of. The delay between his becoming aware of those matters complained of and applying to the ADT to use the material produced on summons was far too long.
With the third to fifth matters complained of, the 12 month period had already expired when the plaintiff became aware of their existence. Consistent with the finding at [54] I find that it was not reasonable for the plaintiff to have commenced defamation proceedings in respect of those matters complained of within the 12 month period following their publication.
However this finding is also of no assistance to the plaintiff. As I have stated, I am only prepared to extend the limitation period up to that point at which it ceased to be not reasonable in the circumstances for the plaintiff to have commenced an action. By 6 August 2010 the plaintiff's appeal against his conviction had been allowed. A consideration of when it ceased to be not reasonable to commence defamation proceedings concerning those publications should include the circumstance that the litigant should have already made, and succeeded on, an application to the ADT in respect of the publications that were discovered on 24 March 2010. In that event, I think it likely that the Commissioner would not have maintained his objection but instead would have treated it as being governed by a decision to already grant the plaintiff leave to rely on the earlier material. For those reasons I would have not extended the limitation period in respect of the seventh to ninth matters complained of beyond 21 September 2010.
However, even if the matter is considered on the basis that there was no earlier application, or that the Commissioner maintained his objection, I would not have extended the limitation to any point on or after 1 November 2010. These conclusions are fatal to the application for the extension that the plaintiff seeks so far as they concern the seventh to ninth matters complained of.
Decision - Application to Extend Time
It follows that I will dismiss so much of the plaintiff's motion as seeks an extension of the limitation period.
At the hearing of the motion there was some uncertainty as to what would be the fate of those parts of the statement of claim that are statute-barred if the motion seeking an extension of time was refused. The effect of s 63(2) of the Limitation Act is that those causes of action are "extinguished". I will strike them out. They are to be found in [5] to [23] of the statement of claim. I will not strike out paragraph 4 which concerns the first matter complained of published by the first defendant. The plaintiff and the first defendant agreed that the first defendant would obtain judgment in respect of that publication and I made an order accordingly. The paragraph can remain in the statement of claim as a means of ascertaining what judgment was entered in respect of.
The plaintiff and the first defendant also agreed that judgment would be entered in the first defendant's favour in respect of the sixth matter complained of. I ordered accordingly. Paragraphs 14 to 16 of the statement of claim concern that publication. However that part of the pleading alleges conduct by both the first and second defendant and there was no consent judgment in favour of the latter. To avoid confusion I will order that those paragraphs be struck out. If there is debate in the future as to the effect of the judgment entered in favour of the first defendant on that publication then it can resolved by reference to the form of the statement of claim filed on 30 December 2011 which will remain on the file.
Application to amend
The amendments sought by the plaintiff fall into three categories.
First there is the amendment to the cause of action concerning the second matter complained of that I have described in [6] above. This was agreed to and is reflected in order 2(i).
Second, there are various amendments to the form of pleading for the third to the ninth matters complained of. The necessity to address the application to make those amendments has fallen away.
Third, the plaintiff sought leave to plead a new cause of action in defamation against Mr Burns, concerning certain comments he made to a process server when being served with the statement of claim on 17 January 2012. No time issue arises in relation to that cause of action. Mr Burns is on notice of the application and has not put any submissions to the contrary of leave being sought. It concerns events that occurred after the statement of claim was filed. I will grant the plaintiff leave to make that amendment. This leave is reflected in order 2(ii).
In addition, paragraph 24 of the statement of claim seeks "defamation damages" against each of the four defendants. The effect of my refusal to extend time is that there are no extant defamations proceedings against the third and fourth defendants and thus these paragraphs need to be reformulated. Paragraphs 25 and 26 claim aggravated and exemplary damages against the first and second defendants but appear to do so by reference to some of the matters complained of that will be struck out or in respect of which a judgment has been entered (see for example 25(d) and 26(d)). I will strike out these paragraphs and give the plaintiff leave to replead them to reflect the two matters complained of that have survived. This leave is reflected in order 2(iii).
Costs
I addressed the outstanding costs issues between the plaintiff and the first defendant in my ex tempore judgment on 4 May 2012. As between the plaintiff and the third and fourth defendants, the third and fourth defendants have been wholly successful on the motion and are entitled to their costs. I will make no order as to costs as between the plaintiff and the second defendant.
orders
Accordingly, the orders of the Court are:
(1) Paragraphs 5 to 26 of the Plaintiff's statement of claim be struck out.
(2) The Plaintiff be granted leave to file an amended statement of claim, such amendments to be restricted to:
(i) pleading a cause of action in defamation in respect of the publication described as the second matter complained of in the statement of claim for a publication period from 30 December 2010 to 11 February 2011;
(ii) the inclusion of a paragraph in the form of paragraph 23A of the proposed amended statement of claim handed up in Court on 4 May 2012; and
(iii) the reformulation of paragraphs 24 to 26 of the statement of claim to reflect the relief claimed against the first defendant and the fourth defendant for the remaining causes of action in defamation pleaded against them.
(3) Any such amended statement of claim to be filed and served on or before 8 June 2012.
(4) Prayers 1 to 3 of the Plaintiff's notice of motion filed 14 February 2012 be otherwise dismissed.
(5) The Plaintiff pay the Third and Fourth Defendants' costs of the Plaintiff's notice of motion filed 14 February 2012.
(6) There be no order as to costs as between the Plaintiff and the Second Defendant in respect of the Plaintiff's notice of motion filed 14 February 2012.
(7) The proceeding stand over to 9.00 am before the Registrar in Common Law on 15 June 2012.
Decision last updated: 18 May 2012
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