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Supreme Court Rules 1970 (NSW), Part 20 r 1 (repealed)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
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- AGLC
- Rodgers v Nine Network Australia Pty Ltd (No 2) [2008] NSWDC 275
- Case
- [2008] NSWDC 275
- Decision Date
CaseChat Overview and Summary
Rodgers v Nine Network Australia Pty Ltd (No 2) concerned a defamation claim brought by the plaintiff against the defendant, a media organisation. The plaintiff sought to amend his Statement of Claim to join two journalists as additional defendants after the one-year limitation period for commencing defamation proceedings had expired. The journalists were alleged to hold the defamatory opinion that the plaintiff was involved in criminal conduct. The legal issues the court had to decide were whether the statutory defence of comment required the journalists to be parties to the proceedings and whether the plaintiff should be granted leave to amend the Statement of Claim under section 56A of the Limitation Act 1969 or sections 64 or 65 of the Civil Procedure Act 2005 (Vic).
The court considered the statutory defence of comment, which requires the defendant to establish that the defamatory matter was a fair and accurate comment on matter of public interest concerning a person who took part in the matter commented on. The court found that the journalists needed to be joined as parties to the proceeding because they were the ones who made the defamatory comments. However, the court also found that the plaintiff's application for leave to amend the Statement of Claim should be granted under section 56A of the Limitation Act 1969, which allows for the extension of the limitation period where it is just and equitable to do so. The court considered that it was just and equitable to extend the limitation period to allow the plaintiff to join the journalists as defendants because the plaintiff had acted promptly in seeking to amend the Statement of Claim and the defendant had not shown any prejudice that would result from the amendment.
The court ordered that the limitation period be extended to the date of the proposed joinder of the journalists as defendants and that the plaintiff file an Amended Statement of Claim within 14 days. The court also ordered that the notice of motion filed on 10 September 2008 be otherwise dismissed, that the plaintiff pay the defendant's costs of the application, and that the matter be stood over for further directions.
The court considered the statutory defence of comment, which requires the defendant to establish that the defamatory matter was a fair and accurate comment on matter of public interest concerning a person who took part in the matter commented on. The court found that the journalists needed to be joined as parties to the proceeding because they were the ones who made the defamatory comments. However, the court also found that the plaintiff's application for leave to amend the Statement of Claim should be granted under section 56A of the Limitation Act 1969, which allows for the extension of the limitation period where it is just and equitable to do so. The court considered that it was just and equitable to extend the limitation period to allow the plaintiff to join the journalists as defendants because the plaintiff had acted promptly in seeking to amend the Statement of Claim and the defendant had not shown any prejudice that would result from the amendment.
The court ordered that the limitation period be extended to the date of the proposed joinder of the journalists as defendants and that the plaintiff file an Amended Statement of Claim within 14 days. The court also ordered that the notice of motion filed on 10 September 2008 be otherwise dismissed, that the plaintiff pay the defendant's costs of the application, and that the matter be stood over for further directions.
Orders
Orders of the court
(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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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