Spedding v Dailymail.com Australia Pty Ltd - [2018] NSWSC 1963

Supreme Court

New South Wales

Medium Neutral Citation: Spedding v Dailymail.com Australia Pty Ltd [2018] NSWSC 1963
Hearing dates: 23 November 2018, 12 December 2018
Decision date: 14 December 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
That the limitation period for bringing an action on the causes of action for defamation pleaded in pars 3, 7 and 11 of the statement of claim filed 22 March 2018 be extended to 22 March 2018; that the plaintiff’s notice of motion filed 1 May 2018 otherwise be dismissed.

Catchwords: LIMITATION OF ACTIONS – general – application of statutes of limitation – action for defamation – imputation that the plaintiff is a convicted paedophile – where plaintiff facing criminal charges for sexual offences against children at time of publication – advice obtained from senior and junior counsel that no defamation claim should be pursued prior to conclusion of criminal proceedings – whether “not reasonable test” satisfied
Legislation Cited: Limitation Act 1969 (NSW), s 56A
Cases Cited: Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304
Houda v State of New South Wales [2012] NSWSC 1036
Category: Procedural and other rulings
Parties: William Spedding (plaintiff)
Dailymail.com Australia Pty Ltd (defendant)
Representation:
Counsel:
L Goodchild then T Molomby SC (plaintiff)
S Chrysanthou (defendant)
Solicitors:
O’Brien Criminal & Civil Solicitors Pty Ltd (plaintiff) Mark O’Brien Legal (defendant)

File Number(s): 2018/91447
Publication restriction: None

Judgment

HER HONOUR: William Tyrrell went missing as a toddler in 2014 and has never been found. William Spedding has been identified as a person of interest in the police investigation into his disappearance. In January 2015, police searched Mr Spedding’s home and questioned him. Since then, Mr Spedding has been the subject of regular attention in the media.
In August and September 2016, two articles were published in The Daily Mail Australia discussing the police investigation with particular focus on developments concerning Mr Spedding. The articles referred to Mr Spedding as a “convicted paedophile”. That was wrong, as the newspaper subsequently acknowledged. At the time of publication of the articles, Mr Spedding faced historical charges of child sexual abuse in both New South Wales and Victoria (apparently relating to the same complainant) but had not been convicted of any such offence.
On 5 March 2018, the New South Wales charges were dismissed and Mr Spedding was informed that the Victorian charges were also going to be withdrawn. Within less than three weeks after the dismissal of the New South Wales charges, Mr Spedding commenced these proceedings seeking damages for defamation against the proprietor of The Daily Mail.

The plaintiff’s application

The action is out of time. The limitation period for defamation is one year. At the time the statement of claim was filed, Mr Spedding’s causes of action for the two articles from 2016 were over six months out of time. The statement of claim also included a claim on a cause of action arising from an article dating back to April 2015 which was almost two years out…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWSC 1963
Decision Date: 14 December 2018

CaseChat Overview and Summary

Spedding initiated proceedings against Dailymail.com Australia Pty Ltd in the Federal Circuit Court, seeking damages for defamation based on an article published by the defendant which implied that he was a convicted paedophile. The defendant sought to have the claim dismissed on the basis that it was statute-barred. The central issue for the Court was whether the plaintiff's claim was statute-barred under the general limitation period for defamation claims. Specifically, the Court had to determine whether the "not reasonable test" was satisfied, which requires the plaintiff to demonstrate that it was not reasonable to bring the claim prior to the conclusion of the related criminal proceedings.

The Court found that the plaintiff had obtained advice from senior and junior counsel that a defamation claim should not be pursued until the conclusion of the criminal proceedings, which were ongoing at the time of publication. The Court considered that this advice was based on a reasonable apprehension of unfairness and bias in the defamation proceedings if they were to be heard while the criminal proceedings were ongoing. The Court held that the plaintiff had satisfied the "not reasonable test" and, as a result, the claim was not statute-barred. The defendant's application to have the claim dismissed was dismissed.

The Court found that the plaintiff was entitled to bring the defamation claim and that the claim was not statute-barred. The Court ordered that the defendant's application to have the claim dismissed was dismissed, and the defamation claim could proceed.

Orders