Rodgers v Nine Network Australia Pty Ltd (No 2)
[2008] NSWDC 275
•28 November 2008
CITATION: Rodgers v Nine Network Australia Pty Ltd (No 2) [2008] NSWDC 275 HEARING DATE(S): 10 and 17 October 2008
JUDGMENT DATE:
28 November 2008JURISDICTION: Civil JUDGMENT OF: Gibson DCJ DECISION: (1) Pursuant to s 56A Limitation Act 1969 I extend the limitation period to the date of the proposed joinder of Simon Bouda and Tracey Grimshaw to the date given in order 2 below for the filing of an Amended Statement of Claim in these proceedings.
(2) The plaintiffs are, within fourteen (14) days, to file an Amended Statement of Claim joining Simon Bouda and Tracey Grimshaw as defendants to proceedings for defamation, injurious falsehood and pursuant to the Trade Practices Act 1975 (Cth), as well as to plead the additional imputation as specified by the plaintiffs in written submissions.
(3) Notice of Motion filed on 10 September 2008 (as amended) otherwise dismissed.
(4) Plaintiffs pay defendants’ costs of the application.
(5) Matter stood over for further directions to Friday 19 December 2008 at 9:00am.CATCHWORDS: LIMITATION - defamation - defendant pleads comment defence after one-year limitation period expires - plaintiff seeks leave to amend to join journalists who hold the opinion as parties - whether statutory defence of comment requires journalists to be parties - whether leave should be granted under s 56A Limitation Act or ss 64 or 65 Civil Procedure Act LEGISLATION CITED: Civil Procedure Act 2005 (NSW), ss 14, 56, 58, 59, 64 and 65
Defamation Act 1974 (NSW)
Defamation Act 2005 (NSW), ss 31(2) and 31(4)(b)
Limitation Act 1985 (ACT), s 21
Limitation Act 1969 (NSW), ss 14B, 56A and 60G(2)
Supreme Court Rules 1970 (NSW), Part 20 r 1 (repealed)
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), rr 6.21, 6.24, 6.28 and 19.1CASES CITED: Agtrack (NT) Pty Ltd v Hatfield [2003] VSCA 0006
Australian Coastal Shipping Commission v Curtis Cruising Pty Limited (1989) 17 NSWLR 734
Boland v Dillon; Cush v Dillon [2007] NSWDC 8
Brazel v John Fairfax & Sons Ltd (Hunt J, 17 February 1989, unreported)
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Buck & Ors v Jones & Ors [2002] NSWCA 8
Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153
Church of Scientology of California Inc v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344
Coates v Harbour Radio Pty Ltd & Anor [2008] NSWSC 292
Davis v Nationwide News Pty Ltd [2008] NSWSC 699
Dehsabzi & Dehsabzi v John Fairfax Publications Pty Ltd [2007] NSWDC 247
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Dubourcq v Brouwer 124 N.Y.S.2d 61 (1953), AFF'D, 282 App. Div. 861
Fernance v Nominal Defendant (1989) 17 NSWLR 710
Ferrier v Jones & Anor [2003] NSWSC 39
Ford v Nagle & Ors [2004] NSWCA 33
Gersbach v Radio 2UE Sydney Pty Ltd (Supreme Court of NSW, Levine J, 29 August 1997, unreported)
Gorton v ABC & Walsh (1973) 1 ACTR 6
Greater Lithgow City Council v Wolfenden [2007] NSWCA 180
Greenwood v Papademetri [2007] NSWCA 221
Gulf Atlantic Life Insurance Company v Hurlbut 696 S.W.2d 83
Gulf Atlantic Life Insurance Company v Hurlbut 749 S.W.2d. 762 (Tex. 1987)
Hall & Ors v Jones & Anor [2000] NSWSC 39
Harrigan v Jones [2000] NSWSC 119
Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207
Karam v ANZ Banking Group Limited [2000] NSWSC 596
Le Busque v ACP Publishing Pty Ltd (2005) 195 FLR 198; [2005] ACTSC 138
Liff v Peasley [1980] 1 All ER 623
Mackay v Jones & Anor (Supreme Court of NSW, Levine J, 12 May 1995, unreported)
Morgan v Banning (1999) 20 WAR 474
Murrihy v Radio 2UE Sydney Pty Ltd (Supreme Court of NSW, Levine J, 11 December 1998, unreported)
National Mutual Life Association of Australasia Ltd v GTV Corp Pty Ltd [1989] VR 747
NSW Aboriginal Land Council & Ors v Jones & Ors (Supreme Court of NSW, Levine J, 15 August 1997, unreported)
O'Neill v Jones & Anor [1999] NSWSC 270
Peluso v TCN Channel Nine Pty Limited [2000] NSWSC 213
Rodgers v Nine Network Australia Pty Ltd [2007] NSWDC 180
Scott v Jones & Anor [2002] NSWSC 210
Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLR 390
Sibroll Pty Ltd v Mitch Properties Pty Ltd [2007] NSWSC 579
Stokes v Radio 2UE Sydney Pty Ltd (Supreme Court of NSW, Levine J, 31 October 1995, unreported)
Street and 7 Ors v Luna Park Sydney Pty Ltd and 1 Or [2006] NSWSC 230
Waites v Macquarie Radio Network Ltd [2006] NSWSC 507
Wallace v Jones & Anor [2001] NSWSC 1085
Westerway v Jones and Radio 2UE Sydney Pty Ltd (Supreme Court of NSW, Levine J, 20 August 1993, unreported)TEXTS CITED: Australian Defamation Law and Practice
Gatley on Libel and Slander (10th ed)
Hansard, 18 October 2005, J, “Defamation – Pre-Trial Practice” (published in “Aspects of the Law of Defamation in New South Wales” (J C Gibson ed., Law Society of NSW, 1990)
Spencer Bower, A Code of the Law of Actionable Defamation, 2nd ed (Sweet and Maxwell, London, 1923)PARTIES: First Plaintiff: Stewart Clifford Rodgers
Second Plaintiff: Davidson Cameron Pty Ltd
First Defendant: Nine Network Australia Pty Ltd
Second Defendant: Australian News Channel Pty Ltd
FILE NUMBER(S): 6178 of 2006 COUNSEL: Plaintiffs: Mr R D Glasson
Defendants: Mr M RichardsonSOLICITORS: Plaintiffs: Brophy Bridge & Mirow
Defendants: Johnson Winter & Slattery
Judgment
1. The plaintiffs by Notice of Motion filed 10 September 2008 seek leave to join two of the first defendant’s employees, Simon Bouda and Tracey Grimshaw (“the journalists”), as defendants to proceedings for defamation commenced by Statement of Claim on 20 December 2006. The publications were broadcasts made between 20 October and 2 November 2006. The one year limitation period under s 14B Limitation Act 1969 (NSW) expired on 2 November 2007 at the latest.
2. Following argument on 3 October 2008 the plaintiffs filed an Amended Notice of Motion seeking, in addition, leave to amend the Statement of Claim to add the journalists as defendants to the injurious falsehood claim (for which the limitation period is six years) and to add a claim under the Trade Practices Act 1974 (Cth) against the defendants and the journalists for the first three publications, which are “promotional” advertising for the fourth publication. Further argument was then heard on 17 October. As a result of other commitments in my judicial calendar I was therefore not able to hand this judgment down until 28 November 2008.
3. This application raises a number of problems which may be relevant to other defamation proceedings (either contemplated or currently on foot) concerning the interaction between the Limitation Act 1969 (NSW) and the Civil Procedure Act 2005 (NSW) and the impact of an apparent significant change in the statutory defence of comment which was discussed (but not the subject of any judgment) by McClellan CJ at CL in the course of the defamation proceedings brought by the actress Judy Davis in May 2008 (Davis v Nationwide News Pty Ltd [2008] NSWSC 699). In the course of submissions, McClellan CJ at CL expressed the view that it was necessary for the journalists to be joined as parties (a step rarely taken in the past by plaintiffs, for reasons set out in more detail below) for the plaintiffs to be able to succeed in defeating the defence of comment.
The history of these proceedings
4. The plaintiffs commenced proceedings for defamation concerning three promotional broadcasts for A Current Affair and for the program itself in a matter of weeks after the broadcast, and the usual interlocutory steps then took place, including a challenge to the imputations (Rodgers v Nine Network Australia Pty Ltd [2007] NSWDC 180). The defendants were ordered to file a defence within the limitation period but did not do so. After the limitation period expired, the defendants filed a defence pleading statutory honest opinion and common law fair comment defences (“the comment defences”) and on 14 March 2008 identified “Mr Bouda and/or Ms Grimshaw” as the employees or agents of the first defendant who held the relevant opinions. (This is of some significance in the limitation argument as the plaintiffs did not know until after the limitation period expired who held the opinions. If McClellan CJ at CL’s view of the statutory defence is correct this may require, as his Honour pointed out in argument, applications for discovery before suit to identify the opinion holders before the expiry of the limitation period.)
5. There the matter rested until discussion of the comment defences during the defamation proceedings commenced by Judy Davis identified what could be a significant change to comment defences under the Defamation Act 2005 (NSW), namely an assertion that the defence of comment under the new Act could not succeed unless the journalist in those proceedings had also been joined by the plaintiff: Davis v Nationwide News Pty Ltd [2008] NSWSC 699. There is no judgment available on this issue, as the parties tell me McClellan CJ at CL made an order (after hearing from the parties) to which both parties consented. The jury findings of fact in Davis meant that the defence of comment failed in any event so there is effectively no finding of fact or law in this trial in relation to this interpretation of the statutory comment defence under the new Act.
6. Prior to the Davis trial, the general practice in defamation pleadings was that the journalist was not joined as a party. In “Defamation – Pre-Trial Practice” (published in “Aspects of the Law of Defamation in New South Wales” (J C Gibson ed., Law Society of NSW, 1990, at pp 1-18), Justice Hunt, the Defamation List Judge from 1979-1991, explained:
Making the journalist a co-defendant is also the greatest spur to making him co-operate with his employer to defend the claim. Moreover, as the journalist is rarely responsible for the headlines, the sub-headings or the captions on any accompanying photographs, and as the sense or the context of the material which he submitted may have been substantially altered by a sub-editor, his personal responsibility for what was in fact published in the newspaper could well be different from the responsibility of the newspaper itself: Gorton v ABC & Walsh (1973) 1 ACTR 6 at 8; Brazel v John Fairfax & Sons Ltd (Hunt J, 17 February 1989, unreported).” (at pp. 13 – 14).“It is unwise to multiply the number of defendants unnecessarily. If the defendant is a newspaper, there is no need to add as defendants the editor or the journalist, and there may be disadvantages for your client in doing so, unless there is an admission which is otherwise inadmissible… The newspaper is in any event almost invariably vicariously responsible for the malice of its journalists, and the interrogatories directed to the newspaper must be answered by reference to the relevant journalist’s state of mind: Seidler v John Fairfax & Sons Ltd [1983] 2 NSWLR 390 at 392 – 394.
7. In Australian Defamation Law and Practice at [5170]-[5265], the issue of liability for publication, and the question of the plaintiff’s choice of defendants, is discussed at length. The fact that a plaintiff may have a choice between a number of joint tortfeasors as to which defendant to sue is, as Spencer Bower pointed out (Spencer Bower, A Code of the Law of Actionable Defamation, 2nd ed (Sweet and Maxwell, London, 1923) at page 10, cited at [5265] of the Australian Defamation Law and Practice), a matter of great significance in a practical sense. Although there is discussion of the potential liability of the proprietor, a principle’s agent, the editor, executive producer, printer, distributor and source of information are discussed, there is no specific section in the Practice relating to journalists. Similarly, in Gatley on Libel and Slander (10th ed at [8.29]-[8.33]), Gatley at [8.29] notes that where there is a defence of privilege or fair comment, the publisher will have a defence unless the relationship between the publisher and the employee or agent was such as to make the publisher responsible (i.e. vicariously liable) for that person’s action. Gatley goes on to note “[p]lainly A will be responsible where A is a newspaper and B a journalist employed by it”.
8. That is not to say that journalists were never sued. They were occasionally joined as additional defendants. This seems to have occurred quite often where the journalist in question was Alan Jones. Actions brought over his broadcasts often name him as the first defendant (e.g. Ferrier v Jones & Anor [2003] NSWSC 39; Scott v Jones & Anor [2002] NSWSC 210; Buck & Ors v Jones & Ors [2002] NSWCA 8; Wallace v Jones & Anor [2001] NSWSC 1085; Harrigan v Jones [2000] NSWSC 119; Hall & Ors v Jones & Anor [2000] NSWSC 39; O'Neill v Jones & Anor [1999] NSWSC 270; NSW Aboriginal Land Council & Ors v Jones & Ors (Supreme Court of NSW, Levine J, 15 August 1997, unreported); Mackay v Jones & Anor (Supreme Court of NSW, Levine J, 12 May 1995, unreported); Westerway v Jones and Radio 2UE Sydney Pty Ltd (Supreme Court of NSW, Levine J, 20 August 1993, unreported)). Sometimes he is the second or third defendant: Coates v Harbour Radio Pty Ltd & Anor [2008] NSWSC 292; Peluso v TCN Channel Nine Pty Limited [2000] NSWSC 213. While this is not a universal rule, cases where Mr Jones was not sued are rarer (Gersbach v Radio 2UE Sydney Pty Ltd (Supreme Court of NSW, Levine J, 29 August 1997, unreported); Waites v Macquarie Radio Network Ltd [2006] NSWSC 507; Stokes v Radio 2UE Sydney Pty Ltd (Supreme Court of NSW, Levine J, 31 October 1995, unreported); Murrihy v Radio 2UE Sydney Pty Ltd (Supreme Court of NSW, Levine J, 11 December 1998, unreported)). Notwithstanding this curious (and unexplained) anomaly, in the vast majority of cases, journalists have not been parties to the action.
9. It was against this general practice that the plaintiffs commenced proceedings, but only against the mass media organization and not against the journalists.
An application to join the journalists in these proceedings
10. The plaintiffs bring an application to join the journalists as defendants in the defamation proceedings. Although the one-year limitation period has expired, the further two year period for extension of time is still on foot. An application is also brought to join them as parties to the existing injurious falsehood claim and to bring a new claim against the journalists and the broadcasters pursuant to the Trade Practices Act 1975 (Cth) as well as to plead a new imputation.
11. There is no opposition to the Trade Practices Act claim and injurious falsehood proceedings, which were brought as an alternative claim to the defamation action (although I note the opposition to the joinder of Ms Grimshaw to the injurious falsehood claim). The journalists are, or are shortly to become, defendants in these proceedings.
12. The three issues for determination before me are:
(a) whether leave should be granted to the plaintiffs to add Tracy Grimshaw as a defendant to the injurious falsehood claim;
(c) alternatively, pursuant to ss 14, 64 and/or 65 Civil Procedure Act and/or rr 6.24 and/or 19.1 Uniform Civil Procedure Rules 2005 (NSW) the plaintiffs be given leave to join the journalists as defendants to these proceedings in the form of the pleading annexed to the Amended Notice of Motion.(b) whether the limitation period pursuant to s 56A Limitation Act 1969 (NSW) should be extended to the date of the proposed joinder of the journalists to these proceedings;
The granting of leave to join Ms Grimshaw in the injurious falsehood claim
13. The defendants submit that the particulars of malice pertaining to Ms Grimshaw fail to allege that she was aware of or had any particular involvement in this story beyond the normal involvement of that of a compere.
14. This is an argument which can be dealt with in very simple terms. First of all, the defendants have identified Ms Grimshaw as one of the two journalists who hold the opinion relied upon by the defendants for the defence of comment. For Ms Grimshaw to actually hold an opinion, as opposed to have merely spoken the words, is an entirely different situation to that of being a mere “parrot” for the words of others. The defeasance of this defence by evidence of malice would require enquiries of a kind not similar to issues of malice in relation to injurious falsehood.
15. Courts had traditionally been reluctant to strike out defences of qualified privilege on an interlocutory basis as issues such as malice are not appropriate for determination in a summary fashion: Church of Scientology of California Inc v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344 at 349 per Hunt J; Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 157-8; Aust Torts Reports 80-187 per Hunt J; National Mutual Life Association of Australasia Ltd v GTV Corp Pty Ltd [1989] VR 747 at 767.
16. Further, both the Court of Appeal and the Supreme Court of New South Wales have repeatedly warned about the dangers of summary striking out even poorly particularised defences in actions such as defamation or abuse of process which appear to be hopeless. In Ford v Nagle & Ors [2004] NSWCA 33 Mason P stressed that a plaintiff may remedy evidential deficiencies by reason that defendants may go into evidence at the hearing (at [22] and [26]).
17. To deny a party the right to bring proceedings on the basis of apparently inadequate pleadings should only be done in the clearest of circumstances. Ms Grimshaw clearly participated in the programme’s preparation in some way sufficient for her to hold the opinions conveyed by the broadcasts, and further particulars of her conduct of these inquiries (after discovery and interrogatories) may throw a clearer light on this issue. If the defendants have objections to the particulars, these can be dealt with by a request for further and better particulars at the appropriate time.
18. Accordingly, the amendment to join Ms Grimshaw as a party to the injurious falsehood claim will be permitted.
The limitation argument
19. In 2003 the Defamation Act 1974 (NSW) was amended to reduce the limitation period from six years to one year. Since that time there had been a number of applications to commence proceedings out of time. As a general rule, these applications have been successful where a reasonable explanation is put forward, the delay is not substantial and there is no assertion of actual prejudice: see for example Dehsabzi & Dehsabzi v John Fairfax Publications Pty Ltd [2007] NSWDC 247 (application refused); Boland v Dillon; Cush v Dillon [2007] NSWDC 8 (application granted).
20. The repealed provisions of the Limitation Act 1969 relating to limitation periods for defamation actions immediately prior to the introduction of the Defamation Act 2005 were as follows:
“ 14B Defamation (repealed)
(1) Except as provided by subsection (2), this section applies to a cause of action based on the publication of defamatory matter that accrues after the commencement of this section.
(2) If:
(a) a cause of action based on the publication of defamatory matter that accrues after the commencement of this section is one of two or more causes of action in proceedings commenced by the plaintiff, and
(c) one or more of the other causes of action in the proceedings accrued before the commencement of this section,(b) each cause of action in the proceedings accrues because of the publication of the same, or substantially the same, matter on separate occasions (whether by the same defendant or another defendant), and
(3) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of one year running from the date on which the defamatory matter was published.”
then this Act as in force immediately before the commencement of this section continues to apply to each cause of action regardless of when it accrues.
21. It is against this background that the current provisions for limitation periods in relation to defamation actions need to be seen. In introducing the new legislation to Parliament the Attorney General, Mr Debus MLA, said:
“The relevant limitation period provisions have also been updated, but are essentially unchanged. The limitation period will continue to be one year from the date of publication, extendable to 3 years if the court considers it was not reasonable in the circumstances for the plaintiff to have commenced their [sic] action in time.”
(Hansard, 18 October 2005, )
22. The new section provides:
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.”“ 14B Defamation
The defendants’ first submission: the new Act imposes a stricter test
23. The defendants firstly submit that the new Defamation Act, contrary to the statements of the Attorney General, is not the same as or similar to its predecessor, but much stricter in its requirements. The defendants draw my attention to Le Busque v ACP Publishing Pty Ltd (2005) 195 FLR 198; [2005] ACTSC 138. The plaintiff in those proceedings was refused leave by Master Harper because the plaintiff’s affidavit made it clear he first became aware of the article well within the initial limitation period.
24. The limitation period which Master Harper considered, s 21 Limitation Act 1985 (ACT), is in the following terms:
(2) For an action in a court, the court shall, if satisfied that it was not reasonable for the plaintiff to have known about the publication of the matter complained of within 1 year from the date of the first publication, extend the limitation period mentioned in subsection (1) to 2 years.”“(1) An action on a cause of action for defamation is not maintainable if brought after the first to end of a limitation period of 1 year running from the date of the first publication of the matter complained of.
25. This provision gave only a limited right of extension where it was not reasonable for the plaintiff to have known about publication of the matter complained of. That is entirely different to s 56A, which provides that the plaintiff has only to satisfy the test that it was not reasonable in the circumstances for the plaintiff to have commenced an action, whether the plaintiff knew about the publication or not.
26. I reject the defendants’ interpretation of the new provisions. The intention of the legislature was to have the same or similar provisions. I see nothing in the use of the word “action” or the reformulation of the test to impose additional restrictions. The defendants do not submit that there was any such restriction under the repealed legislation and I cannot see any reason for accepting this very narrow reading of the new provision.
The defendants’ second submission: no power to rely on s 56A where proceedings have already been commenced
27. The second submission made by the defendants is that relief under s 56A is only available where no proceedings had been commenced at all. In other words, where proceedings had been commenced within time, and a defence is put on which identifies some other joint tortfeasor or an alternative wrongdoer, once the initial one year limitation period has passed, the plaintiffs are powerless to join any of them.
28. No authority has been proffered to me in support of this unusual interpretation, which is predicated upon the use of the word “action” rather than “proceedings”. Applications to join new defendants out of time to existing proceedings are commonly made in all areas of litigation.
29. The purpose of the Limitation Act is to encourage the timely bringing of litigation. To reward the plaintiff who commences late, while punishing the plaintiff who sues in time and then makes a belated discovery of additional tortfeasors would be contrary to this intention. To assert that if litigation is brought in time, the Limitation Act cannot be used at all (in that “proceedings” had been commenced) is in my view a misinterpretation of this provision.
30. Accordingly I reject the defendants’ second submission, namely that the provisions of the Limitation Act impose a new and stricter test, and that once an action has been commenced and the limitation period had expired, no application can be made during the additional two year period in which an extension could be granted. (I note that in Fernance v Nominal Defendant (1989) 17 NSWLR 710 and Australian Coastal Shipping Commission v Curtis Cruising Pty Limited (1989) 17 NSWLR 734, both of which were cases where an application for amendment was made, the court did not refuse to hear the application by reason of the fact that proceedings had already been commenced.)
31. This brings me to the question of whether an application for extension of time to commence proceedings against the journalists should be granted.
The defendants’ third submission: time should not be extended pursuant to s 56A
32. The matters put forward by the plaintiffs to show that it was reasonable for the plaintiffs not to commence against or to join the journalists prior to 2 November 2007 are:
(a) prior to late May 2008 there was no interpretations of ss 31(2) and 31(4)(b) Defamation Act 2005 requiring the joinder of journalists to defamation proceedings, without which a corporate defendant would almost always succeed in a defence of comment. The case in question, Davis v Nationwide News Pty Ltd , was only the second case under the new Act to proceed to trial on issues of liability and was the first to consider the new defence of comment;
(c) the names of Ms Grimshaw and Mr Bouda was not known until after the expiry of the limitation period.(b) prior to this it had always been the case that the journalist was not joined. In addition to this being a practice that is generally discouraged (see r 6.21 Uniform Civil Procedure Rules ), specifically in defamation proceedings (see the warnings of Hunt CJ at CL set out above), the plaintiffs did not know which journalists held the opinion, particularly in the case of Ms Grimshaw, who might only have been a compere for all the plaintiffs knew.
33. The plaintiffs in support of their application submit that this is not an application to add separate publications or additional imputations, but rather to join parties against whom precisely the same causes of action are pleaded (written submissions paragraph 28). It is asserted that therefore:
(a) there can be no real or actual prejudice suffered by the defendants if the application is granted;
(b) both the journalists are or should be witnesses for the defendants on the defences currently pleaded, additional time and complication caused by their joinder would be minimal and the case had not yet been set down for hearing in any event;
(d) finally, it is submitted that the joinder could not render a fair trial unlikely ( Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 550), and that this was not a case where it could be said it was not “fair and just” that the extension be granted ( Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207).(c) there is no issue of delay ( Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [29]-[32]) so as to justify a refusal to permit the amendment and joinder; and,
34. The defendants’ response to this is to assert that these discretionary issues “are not relevant” and to assert:
(a) there is “in substance” a two year delay;
(c) The respondents are entitled to the benefits afforded by the limitation provisions.(b) the plaintiffs always knew the identity of the respondents and elected not to sue them (which I assume is the reference to the principles explained by Ipp A-JA in Itek Graphix ); and,
35. As the language of s 56A is similar to the language of s 60G(2) Limitation Act concerning the extension of time of an action for negligence, nuisance, breach of duty or personal injury, judges considering applications for extension of time in defamation proceedings have generally obtained guidance from decisions of the Court of Appeal brought pursuant to s 60G.
36. At [48]-[55] of Itek Graphix Pty Ltd v Elliott, Ipp A-JA explains the very broad nature of the discretion and the need for the test to be a flexible one with regard to the particular circumstances of the case. The question is whether a sufficient explanation has been given for the failure to commence proceedings in time and if so whether, having regard to all of the circumstances of the case, it is fair and just to grant (or refuse) the application. The broad range of factors set out in Brisbane South Regional Health Authority v Taylor at 551-556 (per McHugh J) are generally applied.
37. The reduction of the limitation period from six years to one year is essentially because the impact of delay in defamation actions is of an unusual kind, namely it can reduce the damages, as Gatley on Libel and Slander (10th ed at [18.26]) pointed out in relation to the English amendments.
38. The matters complained of were published between 20 October and 2 November 2006 and proceedings were commenced on 20 December 2006. The limitation period expired on 2 November 2007 at the latest and the Notice of Motion was filed on 10 September 2008. The defendants’ submission that there is in substance a two year delay is something of an exaggeration, given the extension of time would run from 2 November 2007.
39. The issue of delay needs to be seen in context of the facts in each case. It is an inherent part of all applications for extension of time that there has been a delay of some sort or another.
40. There is no assertion that there has been any delay between the discovery by the plaintiffs’ legal advisers of the legal issues raised in the Davis proceedings and the bringing of this application. Nor has any point been taken about the circumstances in which the argument was adjourned so that the Notice of Motion could be amended to seek further relief.
41. There are two other matters to which I should mention. The first of these is that the journalists are effectively the parties to the proceedings for injurious falsehood and misleading and deceptive conduct. Some courts had taken the position that limitation provisions governing defamation should apply to injurious falsehood when the disparagement was personally defamatory (Dubourcq v Brouwer 124 N.Y.S.2d 61 (1953), AFF'D, 282 App. Div. 861). Other courts have permitted the plaintiff to sue for both causes of action if the damages do not overlap and the fact that one claim is precluded because of the shorter limitation period does not preclude the other claim if the pleading and proof do not form part of the action barred (Gulf Atlantic Life Insurance Company v Hurlbut 696 S.W.2d 83, reversed on other grounds 749 S.W.2d. 762 (Tex. 1987)). However, these arguments have not been raised by the defendants, so I do not propose to take them into account.
42. The second is the point made by the Court of Appeal in Greenwood v Papademetri [2007] NSWCA 221 where Young CJ in Eq noted at [120] that:
“In the light of ss 56, 58 and 59 of the Civil Procedure Act , judges must not now delight in technicalities but must strive to produce just and fair results.”
43. Greenwood v Papademetri was a case on correcting a mistake to the name of a party in proceedings, but it is a timely reminder of the need for litigation to be “just, cheap and quick” and of the impact of the Civil Procedure Act in limitation proceedings and the need for “just and fair results”.
44. I am satisfied in the circumstances that the plaintiffs have a reasonable explanation for not commencing proceedings within the one-year limitation period against the journalists. Having regard to the general practice of not suing journalists in defamation proceedings, and the unexpectedness of the views expressed by McClellan CJ at CL in the Davis case, the plaintiffs reasonably considered it was sufficient to sue the broadcasters.
45. The second argument raised by the defendants is that the plaintiffs always knew the identity of the respondents and elected not to sue them. A decision not to commence proceedings within the limitation period is a matter that should be viewed seriously, for the reasons explained by Ipp A-JA in Itek Graphix.
46. However, this was not a case where the plaintiffs knew they had a cause of action against the journalists and deliberately elected not to sue them. They thought they had a complete remedy against the mass media broadcaster, and assumed, rightly or wrongly as the case may be, that the journalists’ employer was vicariously liable for their conduct.
47. An issue sometimes raised in limitation actions is that the amendment is futile. This was an argument that could have been put by the defendants, but they elected not to do so. It was open to the defendants to submit that there was no judgment in the Davis case and no support for the contention that it is necessary to sue not only the mass media publisher, but also the journalists who held the relevant opinions relied upon for the defences of comment and fair comment.
48. If the defendants had taken this issue, it would have required me to determine whether this view of the defence of comment under the 2005 Act in fact required joinder of the journalists, or whether such joinder is futile. The defendants’ deliberate failure to take this point smacks of an attempt at tactical advantage by raising this argument at some more strategically opportune time.
49. I indicated to the defendants that, notwithstanding the defendants’ failure to take this point, I proposed to make findings on this issue so that any review of this decision at appellant level would require a finding as to whether or not the amendments are futile. Since I have received no assistance from the defendants in the form of submissions and there is no authority on this issue, my reasons will be brief.
50. Although not binding on me, the views expressed by McClellan CJ at CL are strongly persuasive, and as a matter of comity I should accept them. I accept that for the operation of s 31(4)(b), in order to give the words of this section the meaning that the Parliament has put on the paper (to use the words of McClellan CJ at CL at transcript 1121), it is necessary to identify and sue separately the employee who holds the opinion. The onus lies on the plaintiff to prove that a defendant did not believe that the opinion was honestly held, and this is a substantial change in the statutory defence.
51. Given the difference between the statutory and common law defence, statutory amendment may be necessary, unless it was the intention of Parliament to provide what Mr Blackburn SC called “a boon to the defendants” (Transcript 1120). McClellan CJ at CL called this “more than a boon”, and I respectfully agree.
52. Accordingly I am satisfied that the plaintiffs’ decision not to sue the journalists was not the deliberate permitting of a period of limitation to expire, but the belief that their cause of action effectively laid against the broadcaster. I also note the plaintiffs did not know the identity of the persons who held the opinion until after the expiry of the limitation period.
53. Finally, I note the defendants’ submission that the journalists are entitled to the benefit afforded by the limitation provisions. I have taken this into account and note the warnings of McHugh J in Brisbane South Regional Health Authority v Taylor about the dangers of actions commenced after lengthy delays.
54. However, in the present circumstances, such arguments are particularly weak, given the fact that the defendants rely upon the holding of the opinions by the journalists as a basis for the defence of comment.
55. As Ipp A-JA stressed in Itek Graphix, actual prejudice is a matter of the utmost seriousness. Even the lesser claim of presumptive prejudice needs to be considered on the facts of the case. On the facts of this application, the benefits afforded by the limitation provisions should not be allowed to trump the entitlement of the plaintiffs to seek leave to extend time to commence proceedings in the very unusual circumstances of this case.
56. Accordingly I propose to grant leave to the plaintiffs to add the journalists as defendants to proceedings for defamation commenced by Statement of Claim on 20 December 2006.
The application pursuant to the Civil Procedure Act
57. The plaintiffs, in the alternative, brought applications pursuant to ss 14, 64 and 65 Civil Procedure Act. In the event that I have erred in relation to my findings concerning the Limitation Act application, I shall set out my findings on this issue. I would have to assume, for the purposes of ss 64 and 65, not only that the relevant limitation period had expired, but also that no application had been brought for an extension of time and refused. This gives my findings on this issue a high degree of artificiality, and they are accordingly fairly brief.
58. Section 64 provides:
“ 64 Amendment of documents generally
(1) At any stage of proceedings, the court may order:
(b) that leave be granted to a party to amend any document in the proceedings.(a) that any document in the proceedings be amended, or
(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.
(5) This section does not apply to the amendment of a judgment, order or certificate."(4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party.
59. Section 65 provides:
“ 65 Amendment of originating process after expiry of limitation period
(1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings.
(2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as:
(a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or
(c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court’s opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process.(b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court’s opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or
(3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced.(4) This section does not limit the powers of the court under section 64.
(6) In this section, "originating process", in relation to any proceedings, includes any pleading subsequently filed in the proceedings.”(5) This section has effect despite anything to the contrary in the Limitation Act 1969 .
60. The defendants submit that unless there is a mistake in the name of a party, these sections do not permit the circumvention of the limitation legislation. In Greenwood v Papademetri Campbell JA explained the effect of joinder of a party on the operation of limitation periods and explained in some detail how s 65(2)(b) Civil Procedure Act is applied. Rather than attempt to restate what his Honour has so clearly and carefully said, I will set out the relevant extracts of his judgment.
61. First of all, Campbell JA noted that r 6.28 of the Uniform Civil Procedure Rules had the effect that if a party is joined under r 6.24, that joinder cannot be treated as having been effective on any date earlier than the date the order for joinder is made. If the limitation period has expired, the futility of that party’s being joined cannot provide a reason why the order for joinder should not be made at all. If a trial is needed, any order joining the party does not prejudice the availability of the limitation defence that the party joined might have. Campbell JA goes on to note (at [27]) how s 65 operates in this context:
“If, however, a party can be joined under section 65 Civil Procedure Act 2005 , section 65(3) has the effect, unless the court otherwise orders, that the amendment is taken to have had effect from the date on which the proceedings were commenced. Thus, if a person who was not previously a party can be made a party pursuant to section 65, and the proceedings themselves were commenced before the expiry of any limitation period applicable to that person, any limitation defence that that person would have had, if new proceedings had been commenced against him or her on the date the order was made, becomes unavailable. In this way, section 65 has the practical effect of an amendment to the Limitation Act 1969 . Section 65(5) makes explicit that section 65 is intended to have such an effect.”
62. Campbell JA notes (at [28]) that s 64 provides a discretionary basis upon which amendments can be made to a statement of claim in cases not covered by s 65 or the amendment relates back to the date of instituting the proceedings because the mistake is a fundamental one, namely a mistake in the name of a party. Campbell JA goes on to explain however (at [29]):
“It is clear from the terms of section 65(4) itself that section 65 does not result in any limitation by implication of the general power conferred by section 64: Greater Lithgow City Council v Wolfenden at [12]. But that does not necessarily mean that the power of amendment under section 64 is totally unrestricted. It is still possible that a limitation on the power under section 64 could arise by implication from a provision other than section 65. In Fernance v Nominal Defendant , Gleeson CJ (with whom Clarke JA agreed) recognized that the power of amendment contained in the former Part 20 rule 1 Supreme Court Rules 1970 (the analogue of the present section 64) provided a basis for amendment to a statement of claim that was independent of Part 20 rule 4 (the analogue of the present section 65). Even so, Gleeson CJ held that Part 20 rule 1 did not stretch sufficiently wide to permit an amendment to the parties to proceedings on any basis other than that provided by the specific rule that dealt with the time as at which an amendment to the parties to proceedings would take effect (the analogue, in broad terms, of the present rule 6.28). Were it otherwise, there would have been repugnancy between the two different rules.”
63. Campbell JA assumed that the same result would be arrived at in Fernance after the Civil Procedure Act and Uniform Civil Procedure Rules as was the case before. This means it was necessary to consider whether the amendment sought in Greenwood fell within s 65(2)(b), quite independent of s 64. The same is the case in these proceedings.
64. Campbell JA then explained (at [33]-[36]) how s 65(2)(b) Civil Procedure Act should be read:
“The power that is conferred by section 65(2)(b) is purposive in its nature. It authorises the court to grant leave to a plaintiff to amend the originating process in whatever way is needed to correct a mistake in the name of a party to the proceedings. The words “whether or not the effect of the amendment is to substitute a new party” do not limit the width of that power. Rather, they make clear that the power can apply in some circumstances where the effect of the amendment is to substitute a new party, and can also apply in some circumstances where the effect of the amendment is not to substitute a new party. The precise order that is appropriate under section 65(2)(b) will depend upon what, in the circumstances of the particular case, is the particular mistake that there has been in the name of a party to the proceedings, and what needs to be done to correct that mistake.
Section 65(2)(b) does not confer on the court power to correct any and every mistake that has been made in the name of a party to the proceedings. It applies only to a mistake that, in the court’s opinion, is neither misleading, nor such as to cause reasonable doubt as to the identity of the person intended to be made a party. In some cases where an amendment is sought under section 65(2)(b) there may be considerable argument about whether a mistake in the name of a party has those characteristics. However, no such argument was put to us on the present appeal.
No evidence or submission was put to the Judicial Registrar concerning a discretionary reason why she should not make the joinder order, nor is any such discretionary question raised before us. Rather, the entire argument before us has concerned whether power existed to make the joinder order.”Even if a proposed amendment is one whose effect could be described by the language in para (b) of section 65(2), there is still a discretion in the court whether to permit that amendment. Section 65(2) contemplates that any amendment made under section 65(2) will be effected through leave granted under section 64(1)(b). Thus, the discretion of the court concerning whether to grant leave to amend under section 65(2) needs to be exercised in accordance with section 64(2). Section 64(2) itself requires the court to exercise its discretion in accordance with section 58, which in turn requires the court to have regard to the provisions of sections 56 and 57. Even if it were not inherent in the grant of a discretion to a judicial officer, section 58(2)(b) enables the court to have regard, in an application for an order under section 65(2)(b), to matters such as the knowledge that the person proposed to be added as a party had of the proceedings during the limitation period, and the nature and degree of any prejudice that the person sought to be added would suffer if the order were made.
65. Greenwood is a difficult decision to follow because Campbell JA and Young CJ in Eq take differing points of view. At [77] and [78], Campbell JA disagrees with Young CJ in Eq’s reading of s 65(2)(b) in Sibroll Pty Ltd v Mitch Properties Pty Ltd [2007] NSWSC 579. As Young CJ in Eq notes at [97]ff, he disagrees with Campbell JA’s reasoning in Greenwood. Both judges considered, as Young CJ in Eq notes at [108], that “in the situation where the plaintiff mistakenly thought that A was the proper defendant, whereas it was the jointure of A, B and C, it must be considered a case of substitution not a case of adding a fresh party”. Thus in the Greenwood case, if the plaintiff mistakenly thought that Jamiel Antoun was the owner and occupier as well as the builder, and sought that the case proceed against Jamiel Antoun as the builder and Lyne Antoun’s estate as the owner/occupier, Young CJ in Eq would agree on the way that the motion was argued below, that the appropriate amendment should have been made. Young CJ in Eq noted at [118] “should the plaintiff now seek to amend further by deleting the claim that Jamiel was the owner/occupier, I would allow the action to continue against both defendants.”
66. In Street and 7 Ors v Luna Park Sydney Pty Ltd and 1 Or [2006] NSWSC 230, Brereton J explained that there is a clear distinction between a case in which a defendant is added and a case in which an additional cause of action is raised against an additional defendant as follows:
“It is in the second category that controversy has emerged. Some cases have suggested that the relation-back doctrine does not apply to an amendment which adds a new cause of action, so as retrospectively to deprive a defendant of a limitation defence in respect of the new cause of action [ Liff v Peasley ; Morgan v Banning ; Agtrack v Hatfield (VCA)]. And in Agtrack v Hatfield, Ormiston JA suggested that relation back was not a principle of law at all, but a matter or convenient practice applicable only for some purposes”
67. Accepting and applying the analysis of these sections as set out above, I accept the defendants’ contention that s 64 is limited to a question of a mistake in the name of a party. Where a plaintiff has commenced proceedings against a defendant in error, and seeks to commence against the correct defendant there is a limited right of exception to the general principles relating to limitations on actions. However, this exception is very narrow in scope and cannot apply to the factual situation here.
68. Nor is s 65 of assistance to a plaintiff where it requires the addition of new parties. While s 65 would permit the substitution of a new cause of action arising from the same or substantially the same facts as those giving rise to an existing cause of action, and deprives the party against whom litigation has been commenced of a defence under the Limitation Act, this does not permit the joinder of additional defendants in circumstances where the action against those additional defendants is otherwise contrary to the provisions of the Limitation Act. Accordingly s 65 could not assist the plaintiffs if the relevant limitation period had expired.
The application pursuant to s 14 Civil Procedure Act
69. The plaintiffs alternative rely upon a potential interpretation of s 14 Civil Procedure Act (in obiter by Santow J) in Karam v ANZ Banking Group Limited [2000] NSWSC 596 at [16]ff. Although Karam predates the enactment of the Civil Procedure Act, Santow J considered that the overriding purpose set out in the Supreme Court Rules 1970 (NSW) to facilitate the just, quick and cheap disposal of the real issues in proceedings meant that there must be times when the courts would put aside principles of law (NSW Bar Association v Muirhead (1988) 14 NSWLR 173 at 215-6 per Mahoney JA). Santow J noted that in Karam, as was the case here, the proposed additional party (the ANZ Bank) was no stranger to litigation, and the pleadings and factual contentions were essentially the same. This was a different situation to Fernance, where there were no allegations in the pleading relating to the party to be added to as a defendant, who was a complete stranger to the litigation.
70. At [21], Santow J said he was “troubled” by this question but in the end decided to deal with this matter on other bases, noting the inevitable tension between the justice of permitting a party to add a further plaintiff and the expectation that the defendant has in conducting the litigation that no such addition would be permitted after the limitation period has expired (at [21]). Santow J went on to note that Fernance had been distinguished by the Court of Appeal in Australian Coastal Shipping Commission v Curtis Cruising Pty Limited, although the Limitation Act considerations differed.
71. Section 14 Civil Procedure Act provides as follows:
In relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case.”“ 14 Court may dispense with rules in particular cases
72. This section was intended to operate in circumstances of legislative oversight or unforeseen gaps in the rules. The intention was to ensure that technicalities of procedure did not triumph over the substance of issues in the case. It was not however designed to modify or replace the provisions in the Limitation Act or Civil Procedure Act where clear provisions had been enacted. Accordingly, I am of the view that s 14 cannot assist the plaintiffs in this case.
Costs
73. In applications for extension of time, the party seeking the indulgence generally must pay the costs. I see no reason why such an order should not be made in the present circumstances.
Orders
1. Pursuant to s 56A Limitation Act 1969 I extend the limitation period to the date of the proposed joinder of Simon Bouda and Tracey Grimshaw to the date given in order 2 below for the filing of an Amended Statement of Claim in these proceedings.
2. The plaintiffs are, within fourteen (14) days, to file an Amended Statement of Claim joining Simon Bouda and Tracey Grimshaw as defendants to proceedings for defamation, injurious falsehood and pursuant to the Trade Practices Act 1975 (Cth), as well as to plead the additional imputation as specified by the plaintiffs in written submissions.
3. Notice of Motion filed on 10 September 2008 (as amended) otherwise dismissed.
4. Plaintiffs pay defendants’ costs of the application.
5. Matter stood over for further directions to Friday 19 December 2008 at 9:00am.
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